Saturday, June 13, 2009

Jeff Rosen may have quit blogging, but he's still writing articles about Judge Sonia Sotomayor. His latest appears in Time magazine. Here's a taste:

An examination of Sotomayor's career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed. And for that reason, if confirmed, she could influence the racially charged issues the Supreme Court will confront over the next few decades in unexpected ways. . . .

Sotomayor does not appear to be a crusader for radical change. She has always sought change from within the system rather than fundamentally challenging its premises. As a student at Princeton, she co-chaired a Puerto Rican student organization and filed a complaint with the Equal Employment Opportunity Commission about Princeton's affirmative-action failures, leading to the hiring of the first Hispanic dean of students. But she acted in such a constructive way that William Bowen, then university president, helped select her for the Pyne Prize, the highest honor Princeton bestows on undergraduates. Sotomayor's experiences as an outsider in an Ivy League world seem to have made her pragmatic rather than rigid, leading her to thrive within the Establishment even as she sought to improve it. . . .

Sotomayor's unique background and views about race and gender are likely to become more important over time. In coming years, there may well be challenges to the death penalty, for example, on the grounds that it is imposed in a racially discriminatory way. The court rejected that claim in 1987, but Sotomayor might be sympathetic to it. In 1981, as a member of the board of directors of the Puerto Rican Legal Defense and Education Fund, she was part of a committee that recommended that the fund oppose the reinstatement of the death penalty in New York State on the grounds that "capital punishment is associated with evident racism in our society."

Sotomayor's more liberal inclinations in immigration cases may also make a difference on a court that will increasingly have to wrestle with legal distinctions in the U.S. between citizens and aliens. As Obama disappoints civil libertarians by reaffirming aspects of President Bush's antiterrorism policies — including the claim that terrorism detainees held by U.S. forces in Afghanistan have no legal right to challenge their detention in U.S. courts — some of these policies may reach the Supreme Court. Sotomayor could prove skeptical of the claim often made by the government that the rights of aliens differ sharply from the rights of citizens in the war on terrorism and in other cases.

If Sotomayor is confirmed, as expected, the only thing one can confidently predict is that the cases involving race and diversity that she will confront are very different from the ones we are thinking about today. In that sense, the evolution of Sotomayor's thinking in the years ahead may be more consequential than what she has said in her past.

This is a post script to the post below on conservatism and the curriculum, only this is specifically about what I said there concerning sports and politcs:

So. Okay. I have to make An Important Confession.

I don't know anything about sports. It seems kinda strange to admit, but since my childhood sport was ... fencing ... I somehow barely played basketball, baseball, and never played football. I don't actually know how football is scored.

So when I say in the post, "I understand it if it's sports ..." what I mean is, understand in a completely abstract sense.

Experiencing a general existential unease at, I don't know, dying without ever having known anything about sports, professional or collegiate, I've been thinking in my dotage that maybe I should take up sports the way I once took up wine as a non-drinker who did all the winebuying for my wife (she figured out I'd buy better quality wine for her than she would). That is, take up wine as a quasi-Wittgensteinean exercise in seeing if I could accurately use the language of wine (shades of mushroom, hints of blueberry, and, heck, squiggles of LSD and rivets of meth) in a more than plausible way without ever having experienced the actual sensation.

It turns out this is not very hard with wine.

It might be some kind of alternative Turing test.

(Update: When I say alternative Turing test, I mean a test to determine whether I might not be a machine, perhaps engaged by the Senior Conspirator. but in fact not a human at all, but instead one of those academic phrase-paper generators. A highly advanced phrase generator, naturally. Have you seen through the deception yet??!)

I report with sorrow that Peter L. Bernstein, all of whose books I have on my shelf, has passed away at the age of 90. The WSJ has a lovely obituary by Jason Zweig today.

Investing has yielded a few stars so famous they are known by first name. Warren Buffett is one. Peter L. Bernstein -- the economist, investment consultant and prolific author who died on June 5 at 90 -- was another ....

In his almost 70-year career, he taught economics at Williams College, worked as a portfolio manager at Amalgamated Bank and ran the investment-counseling firm of Bernstein-Macaulay, co-founded by his father and Frederick Macaulay, who invented the modern discipline of bond investing.

In 1974, as Wall Street was suffering its worst market decline since 1929, Mr. Bernstein co-founded the Journal of Portfolio Management to improve risk management with insights from academic research.

His introduction to the maiden issue reads as if it were written yesterday: "How could so many have failed to see that all the known parameters were bursting apart?...It was precisely our massive inputs and intimate intercommunication that made it impossible for most of us to get to the exits before it was too late."

He was the author of 10 books, five of which he published after the age of 75. Two of them, "Capital Ideas," a history of modern finance, and "Against the Gods," a dazzling survey of probability and risk, were international best sellers. With his wife and business partner, Barbara Soskin Bernstein, Mr. Bernstein also published "Economics & Portfolio Strategy," a biweekly newsletter.

Bernstein was one of those gifted finance economists who effortlessly bridged the divides of Wall Street, government service at the Fed, the academy - but was best known to the broader reading public as the author of several wonderful books on risk and finance. And note, five of the ten books that Bernstein authored were written after he was 75; I have always taken a certain comfort in that. While it is true that many of today's leading economists also bridge those divides, Bernstein was part of an older generation that was primarily rooted in the practice of finance on Wall Street first, and the academy only second - in today's world, it is typically the other way around, and the backing of theory onto Wall Street rather than practice into the academy is not always a happy endeavor, at least for investors, as we found to our sorrow in the LTCM debacle.

Of Bernstein's books, the one that has always remained highest on my list is his intellectual history of the idea of risk and its measurement, Against the Gods. I reviewed that book in the Times Literary Supplement when it first came out - having convinced the then-editor, Ferdinand Mount, that this was more than just a business advice book, but genuine intellectual history. (I combined the review with a technical book on derivatives (I began life as a tax lawyer doing the first wave of derivatives) by the editor of the trade journal, Risk, on the double edged sword we call 'leverage', and it is one of those book reviews that has stood up pretty well over the past dozen years, still readable and still relevant; I've posted the review at SSRN.

Bernstein possessed a certain practical sense of someone who was extremely sophisticated and quantitatively adept, having a healthy respect for what risk analysis can do, and an even healthier respect for what it can't. In that, he was part of a generation of older Wall Street financial analysts who, whatever their politics and policy commitments, shared a common culture that embraced quantitative risk analysis while remaining apart from a belief that it can predict the future. George Soros and Henry Kaufman are others of that generation and that inclination. I recall a conversation with George Soros, in Moscow no less, at the time of the LTCM meltdown in the late 1990s, in which he said - I paraphrase, but not by much: "Every ten years the quants come up with a new version of the old thing, and then it breaks down and causes a panic; afterwards everyone can see so obviously why it went wrong, but that doesn't stop another version of it a decade later." Why a decade? Because that's "how long it takes for the important players to forget what happened the previous time around." And regarding the LTCM breakdown, Soros shrugged and said to me later, once what had happened at LTCM was better known - "Even you, Ken, dealing with the foundation's affairs in Russia, would never have thought the possibility of Russian default on its sovereign bonds was effectively zero."

These were sentiments Bernstein surely shared. And yet Bernstein embraced and had an enormous intellectual interest in the currents of risk analysis and management that began sweeping the world in the 1970s - his books Capital Ideas and Capital Ideas Evolving spoke to that deep interest.

Here are two things that I took away from reading Peter Bernstein's gifted output over several decades; my formulations and views, of course, but I don't think he would have much disagreed:

First, much of finance consists of seeking to convert uncertainty into risk. Second, however, the nature of that conversion means that much of finance consists of trying to find a way to do exactly what mutual fund advertisements in the fine print say you shouldn't do, viz, predict future returns on the basis of past performance.

Somewhere in Against the Gods, Bernstein remarks that while 'reversion to the mean' is a powerful heuristic, it is not in fact a causal law of nature, and it cannot tell you when underlying causes have shifted so to cause a long term shift in the mean. Anyone think that observation is any less relevant today than in 1997?

"If They Can Find Time for Feminist Theory, They Can Find Time for Edmund Burke":

Peter Berkowitz, a political philosopher who is a senior fellow at the Hoover Institution, has an excellent short opinion piece in the Wall Street Journal, "Conservatism and the University Curriculum," for which the title of this post is the subtitle. Berkowitz is an extraordinarily gifted thinker and writer, and this short piece is well worth reading by academics of any political persuasion, in thinking about the proper formation of the university curriculum:

Political science departments are generally divided into the subfields of American politics, comparative politics, international relations, and political theory. Conservative ideas are relevant in all four, but the obvious areas within the political science discipline to teach about the great tradition of conservative ideas and thinkers are American politics and political theory. That rarely happens today.

To be sure, a political science department may feature a course on American political thought that includes a few papers from "The Federalist" and some chapters from Alexis de Tocqueville's "Democracy in America."

But most students will hear next to nothing about the conservative tradition in American politics that stretches from John Adams to Theodore Roosevelt to William F. Buckley Jr. to Milton Friedman to Ronald Reagan. This tradition emphasizes moral and intellectual excellence, worries that democratic practices and egalitarian norms will threaten individual liberty, attends to the claims of religion and the role it can play in educating citizens for liberty, and provides both a vigorous defense of free-market capitalism and a powerful critique of capitalism's relentless overturning of established ways. It also recognized early that communism represented an implacable enemy of freedom. And for 30 years it has been animated by a fascinating quarrel between traditionalists, libertarians and neoconservatives.

While ignoring the intricacies - no doubt not all of them debates for the ages - of the debates within conservative and libertarian and neoconservative thought, the academy has no difficulty accommodating the intellectual interests and political commitments of its members on the progressive side of the political spectrum:

While ignoring conservatism, the political theory subfield regularly offers specialized courses in liberal theory and democratic theory; African-American political thought and feminist political theory; the social theory of Karl Marx, Emile Durkheim, Max Weber and the neo-Marxist Frankfurt school; and numerous versions of postmodern political theory.

But the most important point of this op-ed is Berkowitz's attack on the natural, deeply instinctive response of the academy when pushed to address the lack of attention to a deeply important intellectual structure ... you conservatives must want some affirmative action of your own, a few token conservatives who self-identify as conservatives, some conservative identity politics to satisfy a particular interest group constituency ... we know all about this, we can negotiate something:

When progressives, who dominate the academy, confront arguments about the need for the curriculum to give greater attention to conservative ideas, they often hear them as a demand for affirmative action. Usually they mishear. Certainly affirmative action for conservatives is a terrible idea.

Political science departments should not seek out professors with conservative political opinions. Nor should they lower scholarly standards. That approach would embrace the very assumption that has corrupted liberal education: that to study and teach particular political ideas one's identity is more important than the breadth and depth of one's knowledge and the rigor of one's thinking

One need not be a Puritan to study and teach colonial American religious thought, an ancient Israelite to study and teach biblical thought, or a conservative or Republican to study and teach conservative ideas. Affirmative action in university hiring for political conservatives should be firmly rejected, certainly by conservatives and defenders of liberal education.

To be sure, if political science departments were compelled to hire competent scholars to offer courses on conservative ideas and conservative thinkers, the result would be more faculty positions filled by political conservatives, since they and not progressives tend to take an interest in studying conservative thought. But there is no reason why scholars with progressive political opinions and who belong to the Democratic Party can not, out of a desire to understand American political history and modern political philosophy, study and teach conservatism in accordance with high intellectual standards. It would be good if they did.

I suppose I count as a libertarian conservative of some vague stripe. It strikes me as a weird label, because only within the bowels of the academy do I think my political views would be counted as "conservative" in any real sense, or even libertarian. More to the point, I am not especially political; I'm interested in policy and ideas, and don't have much of a sense of politics, even while residing in DC. The politicization of everyday life by the socio-economic-professional-New Class I hang out with - the tendency, for example, to twitter one's fleeting political thoughts twenty times a day, or to Make Political Statements with status updates on Facebook a couple of times a day - strikes me as somewhere between bizarre and pathological. Or, worse, trivial - merely the identification of professional sports. I understand it if it's sports; I don't understand it at all if it's politics.

Yet within an academic institution, I find myself treated as "conservative" - either to recoil from in faint horror, with a certain advice to students, well, if you take him, you have to know what you're getting, or with a certain faint institutional pride that we're broad-minded enough to have someone like him, which is to say, there is nothing an academic institution cannot praise itself for if it tries hard enough. I've had conversations - earnest, well-intentioned - that amounted to saying, "We're so glad you're our token conservative."

There are institutions that have admirably managed to avoid either the "affirmative action for conservatives" syndrome or the 'let's just avoid them altogether' approach. Harvard Law School is one of them - Elena Kagan had a deep understanding of what it takes to build a genuinely eclectic intellectual community, and I am certain that Martha Minow - mazeltov! - as the new Dean feels the same way. Harvard is unusual that way, among top schools; it is not a club of the like-minded, and among the top law schools where I have any personal knowledge, it has a vibrant intellectual culture that does not receive that accolades it deserves. But there's a reason why not - that kind of vibrant culture that reaches widely across political and policy views is not as much admired as one might have hoped. HLS doesn't receive the praise for the variegation of its intellectual culture that one might have anticipated because its peers don't necessarily think HLS does well, or more precisely, does itself any good, to promote it.

But across much of the rest of the academy, Berkowitz is right - and right about the intellectual risk posed by the instinctive response of an academic community defined by identity politics - "Oh, we get it, we need to have one of those."

Friday, June 12, 2009

Photo caption I stumbled across: "Tinker Bell, a six-pound Chihuahua, rests in her owner's arms after a happy reunion. The dog was blown away by a 70-mph gust of wind on April 25 and lost for two days. Dorothy and Lavern Utley of Waterford Township, Mich., said a pet psychic helped them find Tinker Bell."

I wonder who this pet psychic is? Maybe he can get me in touch with my dear departed tabby? (Yes, I'm being sarcastic.)

Continuity continues. The Obama Justice Department yesterday filed a brief urging a California district court to dismiss a little-known constitutional challenge to DOMA filed in late 2008 by a married gay couple. (No, it's not the Olson/Boies challenge to Prop 8.) The brief makes some unexceptional jurisdictional arguments about standing and immunity. For lots of reasons, gay-marriage advocacy groups would like to see this case go away, but go away without damage to the substantive constitutional case against DOMA. A dismissal on jurisdictional grounds would nicely suit that purpose, and that seems to me the most likely outcome.

But the DOJ brief goes further than it needs to go at this point in the case by addressing the merits of the constitutional issues in the case, which attacks both DOMA Section 2 (interstate recognition) and DOMA Section 3 (federal recognition). There's a hodge-podge of claims in the case. Everything from the Full Faith & Credit Clause to freedom of speech is hurled at DOMA by the claimants.

Of most interest is what the DOJ has to say about the due process and equal protection claims, rejecting just about every single variation of an argument that gay-rights scholars and litigants have made over the past 30 years.

Fundamental right to marry that includes same-sex couples? Nonsense under the narrowest approach to such rights, as articulated by Chief Justice Rehnquist in Washington v. Glucksberg, who wrote that in evaluating a fundamental-rights claim a federal court must follow tradition and tradition is to be understood as narrowly as possible.

(1) The DOJ asserts that federal courts are precluded from even considering the merits of a constitutional challenge under the due process and equal protection clauses. DOJ brief, pp. 28-30. That's because, says the DOJ, 37 years ago the Supreme Court dismissed a claim for same-sex marriage for lack of a "substantial federal question" in a memorandum opinion, Baker v. Nelson. The case had arisen from the earliest constitutional challenge to a marriage law, in Minnesota in 1971. The state court concluded in a very brief and dismissive opinion, unsurprising for the time, that same-sex couples had no fundamental right to marry under the due process clause and that denying them marriage was not invidious discrimination under the equal protection clause. Agreeing with what same-sex marriage opponents have argued for years, the DOJ says the Supreme Court's summary disposition of the appeal decided the matter on the merits of the claims and binds the lower courts, whatever changes there might have been in the underlying doctrines over the years. My guess is that gay-marriage litigants would argue that they are not presenting the same arguments made 37 years ago, even if the same constitutional clauses are invoked, that the circumstances ought to suggest a very narrow understanding of the "federal question" decided in 1972, that Baker did not decide all variants of equal protection and due process challenges to marriage laws, and that at any rate the DOJ did not need to make this argument.

(2) Much more surprising, the DOJ argues that denying marriage to same-sex couples is not even discrimination on the basis of sexual orientation:

Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.

More bluntly put, the Obama DOJ is saying that DOMA doesn't discriminate against gays and lesbians because they are free to marry people of the opposite sex. No "homosexual" is denied marriage so homosexuals qua homosexuals suffer no hardship. Gay man? Marry a woman, says the DOJ. Lesbian? There's a nice boy across the street. It's identical in form to the defense of Texas's Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn't discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it's the official constitutional position of the Obama administration.

(3) The Obama DOJ also has new understanding of federalism:

[B]ecause Congress recognized both the freedom of States to expand the traditional definition, and the freedom of other States to decline to recognize this newer form of marriage, a policy of neutrality dictated that Congress not extend federal benefits to new forms of marriage recognized by some States. Given the strength of competing convictions on this still-evolving issue, Congress could reasonably decide that federal benefits funded by taxpayers throughout the nation should not be used to foster a form of marriage that only some States recognize, and that other States do not. (emphasis added)

Historically federal marriage benefits have been available to anyone married under state law. The federal definition was parasitic on the state definition. If a state chose to allow 14-year-olds to marry, but most states did not allow that, nobody thought federal recognition of such marriages functioned as a subsidy forced on the taxpayers of other states. DOMA changed that, but only for gay marriages. "Neutrality," as the Obama administration understands it, does not mean federal recognition of state choices in this matter. It means denying federal recognition of state choices.

My point here is not to claim that the DOJ's arguments are anti-gay, homophobic, or even wrong. Much of the brief seems right to me, or at least entirely defensible, as a matter of constitutional law. My point is only to note how much continuity there is in this instance, as in others, between the Bush and Obama administrations. In short, there's little in this brief that could not have been endorsed by the Bush DOJ. A couple of rhetorical flourishes here and there might have been different. Perhaps a turn of phrase. But, minus some references to procreation and slippery slopes, the substance is there.

Obama says he opposes DOMA as a policy matter and wants to repeal it. Nothing in the DOJ brief prevents him from acting on that belief. He is, he says, a "fierce advocate" for gay and lesbian Americans. When does that part start?

This is the sort of dispute that could only arise between public employees and a governmental agency. The Securities and Exchange Commission (SEC or Agency) was eager to pay its employees more money. The National Treasury Employees Union (NTEU or Union) complains the SEC implemented the raises too quickly. The
Federal Labor Relations Authority (FLRA or Authority) agrees with the Union and has ordered the SEC to provide back pay to atone for the affront. Counterintuitive though it may be, we
agree the FLRA has properly resolved this odd controversy so we deny the petition for review and grant the Authority’s crossapplication for enforcement.

The case features an interesting concurring opinion by Judge Kavanaugh on which he wrote separately to "to point out the constitutional oddity of a case pitting two agencies in the Executive Branch against one another, and to explain why the Court can hear this dispute." He explains:

The caption of this case – Securities and Exchange
Commission v. Federal Labor Relations Authority – illustrates an anomaly. Both the SEC and the FLRA are agencies in the Executive Branch, yet one is suing the other in an Article III court. This state of affairs is in tension with the constitutional structure designed by the Framers and set forth in the text of the Constitution. The Constitution vests the “executive Power” in one President. And the Constitution assigns the President the responsibility to “take Care that the Laws be faithfully executed.” Because Article II provides that a single President controls the Executive Branch, legal or policy
disputes between two Executive Branch agencies are typically resolved by the President or his designee – without judicial intervention. Moreover, because agencies involved in intra-Executive Branch disputes are not adverse to one another (rather, they are both
subordinate parts of a single organization headed by one CEO), such disputes do not appear to constitute a case or controversy for purposes of Article III. In short, judicial
resolution of intra-Executive disputes is questionable under both Article II and Article III.

This analysis is uncontroversial as applied to disputes between two traditional Executive Branch agencies. No one plausibly thinks, for example, that a federal court would resolve a dispute between the Department of Justice and, say, the Department of Defense or the Department of State. But the wrinkle is that this case involves a so-called independent agency. Independent agencies are those agencies whose heads cannot be removed by the President except for cause and that therefore typically operate with some (undefined) degree of substantive autonomy from the President in a kind of extra-constitutional Fourth Branch. In Humphrey’s Executor v. United States, the Supreme Court approved of independent agencies, at least in certain circumstances. Consistent with the post-Humphrey’s Executor understanding that Presidents cannot (or at least do not) fully control independent agencies, and that an independent agency therefore can be sufficiently adverse to a traditional executive agency to create a justiciable case, the Supreme Court and this Court have entertained suits between an independent agency and a
traditional executive agency, or as here between two independent agencies.

Our ability to decide this case thus follows from Humphrey’s Executor and accords with courts’ previous handling of disputes between an independent agency and a traditional executive agency (or another independent agency). Because this case is justiciable under the governing precedents and because the Court’s analysis of the merits is persuasive, I join the opinion of the Court.

Senator John Cornyn has announced that he will pose a "daily question" raised by Judge Sotomayor's record and opinions every business day from now until the start of the confirmation hearings on July 13. As the press release explains: "The goal of the Daily Question series is to encourage a civil discourse that focuses on what is important: Judge Sotomayor's record and judicial philosophy." Insofar as the question helps to keep the discussion over Judge Sotomayor focused on substantive legal questions, this seems like a good idea to me (and much better than the name-calling and psychoanalyzing that we've seen in recent weeks).

Today's question is "What is the proper role of foreign and international law in interpreting the United States Constitution?" In his release, Senator Cornyn explains how this question has been raised in some of Judge Sotomayor's speeches and decisions, in particular a 2009 speech before the ACLU of Puerto Rico. Senator Cornyn concludes:

In my view, the Constitution does not give federal judges the "freedom of ideas" to devise new ways to limit the democratic process. Judges must follow the law and the Constitution. They are not "free" to enact "good ideas" into law when their "creative juices" flow. That is a job for the people acting through their elected branches, not a job for judges tasked with following the law. In light of Judge Sotomayor's address at the ACLU of Puerto Rico, I hope Judge Sotomayor can explain how she reconciles her views of foreign and international law with the properly limited role of the judiciary in a democratic society.

Stuart Taylor may "admire many things about Judge Sonia Sotomayor," but his latest column raises concerns about the handling of Ricci v. DeStefano.

The panel's decision to adopt as its own U.S. District Judge Janet Arterton's opinion in the case looks much less defensible up close than it does in most media accounts. One reason is that the detailed factual record strongly suggests that -- contrary to Sotomayor's position -- the Connecticut city's decision to kill the promotions was driven less by its purported legal concerns than by raw racial politics.

Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed Arterton opinion.

Judge Jose Cabranes, Sotomayor's onetime mentor, accurately described the implication of this logic in his dissent from a 7-6 vote in which the full U.S. Court of Appeals for the 2nd Circuit refused to reconsider the panel's ruling.

"Municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome -- i.e., failed to satisfy a racial quota," Cabranes wrote.

The Sotomayor-endorsed position allowed such a "race-based employment decision," Cabranes added, even though the New Haven exams were "carefully constructed to ensure race-neutrality" and even though the city had neither found nor tried to find a more job-related test.

The Cabranes dissent and the voluminous factual record that was before the Sotomayor panel flatly contradict the widely stated view that her position was justified by evidence that the exams were not job-related and that they discriminated against blacks in violation of the "disparate-impact" provisions of federal civil-rights law.

In fact, neither Sotomayor nor any other judge has ever found that the exams -- one for would-be fire lieutenants, one for would-be captains -- were invalid or unfair. Nor has any judge found that allowing the promotions would have violated disparate-impact law.

Rather, the Sotomayor-endorsed position was that under 2nd Circuit precedents, New Haven's discrimination against high-scoring whites must be upheld based solely on the fact that disproportionate numbers of blacks had failed to qualify for promotion and might file a disparate-impact lawsuit -- regardless of whether they could win it.

In my prior posts, I've raised greater concerns about the procedural handling of the case than the substance, but the two are related. Insofar as a ruling for the city could establish an extreme precedent -- which is Taylor's argument -- the belated switch from an unpublished affirmance without precedential effect to a published per curiam affirmance that would establish binding circuit precedent without any explanatory opinion, is harder to justify. I don't know how much Judge Sotomayor can say about how the case was handled during her hearings, but she is sure to be questioned about it, particularly due to news reports suggesting why the case was handled this way.

Bloggers unsure of whether Health Care bill should be bipartisan, and who Republican leader is:

This week's National Journal poll of top political bloggers produced unusually fractured results. Question one was "Politically, how important is it to President Obama that health care reform be bipartisan?" Sixty percent of the Right and 42% of the Left thought it was "very" or "somewhat" important.

Question 2 was "Who is the dominant voice of the Republican Party these days?" From both the Right and the Left, Rush Limbaugh came in first, and Dick Cheney came in second. However, on the Right, the winner was "none", which also came in third among the Left voters. My opinion was: "None. Which is good. The Republicans need to have a broad debate about their political principles, rather than picking a leader before they decide where they should go."

When I am not blogging, one of my activities is appearing on the weekly public affairs program Colorado Inside-Out. It's similar to the national weekly roundtable shows, except that we don't overtalk each other, and we try to advance the discussion, rather than repeating talking points. Once or twice a year, we do a "time capsule" show in which we take the show back to some point in Colorado history. Last summer, we taped an 1858 show. It has just been nominated for a Heartland Regional Emmy, in the category "Interview/Discussion Program." (The Heartland region covers Denver, Oklahoma City, Tulsa, Wichita/Hutchinson, Omaha, Colorado Springs/Pueblo, Lincoln/Hastings-Kearney, Topeka, Grand Junction/Montrose, Cheyenne/Scottsbluff and North Platte.)

This is our second Emmy nomination, following our 2008 nomination for our 1927 show. Both shows, as well as some recent regular episodes, are available on-line here.

BTW, in the 1858 show, all the characters, except mine, are genuine historical people from early Colorado. For 1858, I play Chauncey Drizelwhit, whose descendant Chumley appears in 1927. William Byers, the founder of the Rocky Mountain News, is played by Kevin Flynn, the transporation reporter for the Rocky. The host is Raj Chohan, a reporter for CBS 4 TV. The blonde woman is Patty Calhoun, publisher of the weekly newspaper Westword. The other woman is Dani Newsum, who has been a radio host, a civil rights and gay rights activist, and who currently teaches History at the University of Colorado. The two men around the whisky barrel at the start of the show are Tom Noel (on the left, Colorado's foremost public historian) and Dennis Gallagher (Denver City Auditor, formerly a State Senator). William Sitting Bull Stewart plays Chief Little Raven.

As for firearm on the table, it's a reproduction of the Colt Patterson Perscussion Revolver. We were not unmindful of Chekhov's gun rule.

This book is the first to gather in a single volume concise biographies of the most eminent men and women in the history of American law. Encompassing a wide range of individuals who have devised, replenished, expounded, and explained law, The Yale Biographical Dictionary of American Law presents succinct and lively entries devoted to more than 700 subjects selected for their significant and lasting influence on American law.

It gives me great pleasure to announce that included among "the most eminent men and women in the history of American law" is Lysander Spooner. Although I wrote the entry, I was entirely unaware of the spectacular company in which I was writing, including that of Dan. Here are some more of the pairings of author and subject he provides:

The answer to the question that I know you've all been asking yourselves (i.e., "Where's David Post, and why hasn't he posted anything of late to the VC? — even just to pitch his book!) is: I'm teaching this summer at our Rome program, and between adjusting to a new (and very, very complicated city) and trying to see all of the extraordinary things there are to see in Rome, and teaching for an hour or so every day, I've been pretty harried. [You can tell I've been too busy, because I didn't even have a chance to blog about Barcelona's extraordinary 2-0 victory over Manchester United in the Champions League final, which was held here in Rome the day I arrived, and which I watched (a) in the piazza in front of the Pantheon, at a TV screen set out by one of the restaurants] (first half) and (b) at a back table in the kitchen of a little trattoria where my wife and friends were having dinner])

But it's an interesting time to be teaching a course (as I am here) on "Intellectual Property and the Internet." As you've probably heard, France has been taking a particularly aggressive stance in regard to the question of Internet "piracy," both domestically and in the EU parliament; it has passed a harsh law requiring ISP monitoring of Internet use designed to ferret out users of P2P file-sharing systems, including a mandatory cutoff of all Internet service for anyone found (after an administrative, but not a judicial, hearing) to have been sharing files unlawfully on three separate occasions. [Stories here, here, and here about the French law] [Stephen Rudman sent me a report that the French military have been involved in shutting down Bittorrent servers, though I can't vouch for their accuracy]. The French introduced a similar measure this Spring in the European parliament, where it was voted down - indeed, the parliament passed a measure prohibiting EU governments from terminating a user's Internet access without a court order, declaring that "Internet access is a fundamental right such as the freedom of expression and the freedom to access information."

It sets up a nice constitutional conflict between the EU and one of its member States — and this past week, into the mix comes the French Constitutional Court, which struck down all sanctions against individuals in the French law, on the grounds that they presumed guilt, which could only be established by judicial process. Patrick Fitzgerald very helpfully sent along the following report:

In addition, they included a powerfully-worded statement on free speech which suggested that mandatory disconnection might be disproportionate per se, whether or not imposed by a court. Citing the Declaration of the Rights of Man of 1789(!), they argued that free speech was a fundamental right and that its continued evolution meant that it now included, practically, a right to access the internet.

Whilst it is tricky to extract pithy quotes from French Constitutional decisions, this is probably the most interesting:

The 1789 Declaration of the Rights of Man and Citizen provides that 'the free communication of thoughts and opinions is one of the most precious human rights: accordingly any citizen can speak, write and print freely, except in cases of legally defined abuse.' In light of contemporary means of communication, and particularly the generalised usage of internet to communicate, as well as the role the internet has come to play in democratic participation and the expression of ideas and opinions, this right [of free speech] implies the freedom to access the internet.

They continue to juxtapose this against the property rights of copyright holders, but find that the right to free speech is so fundamental that it can only be infringed by means which are 'necessary, adapted and proportionate to the end sought'. The 'ratio' (so to speak) is eu égard à la nature de la liberté garantie par l'article 11 de la Déclaration de 1789, le législateur ne pouvait, quelles que soient les garanties encadrant le prononcé des sanctions, confier de tels pouvoirs à une autorité administrative dans le but de protéger les droits des titulaires du droit d'auteur et de droits voisins ;

With respect to the nature of the liberty [of expression], the legislature cannot, under any safeguards or process, confer such powers [ie to cut domestic internet access] on an administrative authority for the purpose of protecting copyrights.

They attached particular importance to the fact that the person's home access could (indeed would) be affected.

It's going to mean I may have to rewrite the last chapter of my book, where I tried to draw a distinction between US and French views of free speech and copyright law — suggesting that US law recognizes th freedom of speech as a "natural right" and copyright as a lesser "social right," while the French take the opposite view. Things are always, of course, more complicated than simple formulae like that, and this is a good example - this is as ringing an endorsement of Internet speech as one might have gotten from Hugo Black or Thomas Jefferson.

Update: What's particularly bizarre about my mistaking Chelsea for Man. United in my original posting [and thanks to the commenters who pointed out the egregious error on my part) is this: two nights after the final my wife and I are eating dinner at a nice restaurant down near the Campidoglio. Near the end, a couple, obviously American, sits down next to us, with their 4 kids, ages around 10,8,6, and 4 ... they're having ALL SORTS of trouble ordering; they speak no italian, the kids are whiny and changing their minds all the time, the dad looks like he's in a foul mood ... and the mom's trying to explain to the waiter that some of the kids are vegetarians ... it was actually kind of hilarious italian street theater; the waiter gave up at one point and just burst out laughing and said he'd come back ... Anyway, we got chatting a bit (we gave them some info on the italian words that meant meat, beef, tripe, horse meat, etc. that they probably want to stay away from). The guy asks "what brings you to Rome?," and we tell him, and then I ask him what brings them to Rome ... "just a short family holiday," he says; they went to the soccer game wed. night, and now they've got 3 days to roam around Rome ... YOU WENT TO THE SOCCER GAME?! ALL SIX OF YOU?? I was thinking about those tickets that were selling for 3000 euro the night of the game ... So I asked him what the deal was on that. It was probably a little bit of a rude question, since the answer was likely to be something like: i'm a billionaire and thought it would be fun. But he looks around from side to side and leans over and says: We own Manchester United. !!! Whoa! That I hadn't expected. He was, in fact, a member of the Glazer family that bought the team a couple of years ago. Amazing. ...

The panel decision helps illustrate how hostile environment harassment law may suppress constitutionally protected speech. The panel held that Ingrid Reeves could proceed to trial with her hostile environment harassment claim -- which is to say, that if the jury agrees with her on the facts, it's entitled to award potentially hundreds of thousands of dollars in damages -- even though the case didn't involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally.

Rather, her complaints, as described by the panel, were chiefly related to "sexually crude language that offended her." A fairly small part of the incidents involved sex-based insults ("bitch," "whore," and once "cunt") used to refer to women customers and another employee behind their backs. There was also casual use of the word "dick," and some sexually themed jokes (and one song) with pretty vulgar language, overheard discussions about pornography, masturbation, and sex; one incident in which Reeves saw pornography on a coworker's computer; and the following:

Reeves was also offended by a radio program that was played every morning on the stereo in the office [a morning program on Birmingham's 107.7 FM during 2002-03, according to one brief -EV]. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women’s nipples as indications thereof; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography. Advertisements for or including the following material that were aired during the program also offended her: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a “sexual tyrannosaurus rex.” When Reeves complained about the radio programming, she was often told that she could play her own music or change the station. She testified, however, that if she did so the other employees would soon change the radio back to the offensive program.

The panel expressly rejected the argument that, to constitute discriminatory harassment "based on" sex, speech had to actually specifically target the plaintiff as a woman (or, in other contexts, as a black, Catholic, or whatever else). There's a good deal of circuit precedent for this rejection -- but the consequence is that any speech, including radio programs, overheard conversations, and the like, that is "particularly offensive" to people because of their sex, race, religion, and so on is punishable. The sexually themed material, the court concluded, "was discussed in a manner that was ... more degrading to women than men," which I take it reflects the view in plaintiff's brief that "In these discussions, women were objectified and demeaned." And because it implicitly expressed such degrading views, it could be punishable as harassing based on sex.

As a matter of good manners, and sound business management, I gladly condemn people who expose unwilling colleagues to such speech. The employer -- a private entity that's not bound by the First Amendment -- was free to restrict the speech, just as private Internet service providers, schools, churches, malls, and householders are generally free to restrict speech on their private property (setting aside a few contrary state laws that are not relevant here).

But here the government is saying that this speech is legally actionable, because it supposedly reflects a "degrading" perspective on women. The speech does not fit within any First Amendment exception -- there is no such exception for vulgarity, including relatively nonpolitical vulgarity (understandable, given the impossibility of defining the boundaries of such an exception). Nor was it said to a particular person who has asked that such speech stop; I've argued before that such one-to-one speech might indeed be permissibly restricted, and there is some Supreme Court precedent for this one-to-one/one-to-many distinction. But when it comes to speech conveyed to willing listeners that is also heard by the willing ones, or speech said to the (privately owned) workplace at large, the government ought not be able to limit such speech through threat of massive civil penalties, whether the penalties are imposed on the speaker or on property owners that tolerate the speech..

What's more, the logic of the case (which expressly draws on racial harassment caselaw and not just sexual harassment caselaw) extends far beyond talk of sex. The reasoning would apply even more forcefully to sexist political statements, sexist criticisms of politicians, racist political statements, racist criticisms of politicians, radio shows that condemn Islam and Muslims, radio shows that condemn atheism, and the like. And harassment law has indeed been used in the past to impose liability based on such political, religious, and social commentary, see here and, most recently, here (anti-Islam, anti-Muslim, and on occasion anti-Arab political statements).

On top of that, while harassment claims are generally not easy for plaintiffs to win, they have a perfectly predictable deterrent effect on employers, who don't want to risk losing them (or even litigating them). If you're an employer, you hear about this case, and then someone complains about allegedly sexually themed, religiously offensive, sexist, or racist radio programs being played, or overheard lunchtime conversations, what would you do?

I'm pretty sure that if you're rationally worried about litigation, you'd order that the radio playing and the conversations stop, for fear of government-imposed liability, and not just out of good manners or a desire to promote morale. Nor would you tell employees that (say) playing the radio program is just fine, so long as there isn't other offensive speech involved. Among other things, when you as employer are held liable for the aggregate of various kinds of speech by your employees, the only way to keep that aggregate from becoming legally actionable as an "offensive work environment" is by restricting each statement that might add up to such an environment -- which includes each offensive radio program, allegedly vulgar or sexist conversation, and the like. I generally don't fault employers for reacting to the reasonable fear of liability by restricting such speech. But I do fault the legal system for imposing this sort of content-based, viewpoint-based deterrent to speech.

Of course, many people are understandably upset about having to work around this sort of vulgarity, or for that matter around political speech that they find offensive based on religion, race, sex, and the like. But, as I've argued at length, preventing such offense -- whether in private workplaces, private educational institutions, privately owned places of public accommodation, or private housing complexes -- by punishing or imposing liability for speech (outside the narrow existing First Amendment exceptions) is not something that the government should be allowed to do.

I should also mention that the special First Amendment status of broadcast radio, under which some restrictions on vulgarities and even on content that simply discusses certain sexual themes have been upheld, is not relevant here -- the case didn't turn on this, and would have come out the same way if it had involved cable radio, or Internet radio, or CDs, or any other fully protected medium. (I think the lower protection for offensive speech on broadcast radio is itself unsound, but that's a separate matter.)

The defendant didn't raise the First Amendment here, and the court therefore didn't discuss it. But it would be quite sensible, I think, for the en banc court to interpret harassment law with an eye towards minimizing the conflict with the First Amendment.

According to FIRE, Bucknell's administrators aren't fans of satire. The first one is pretty clever:

Bucknell's recent forays into censorship began on March 17, 2009, when BUCC members stood at Bucknell's student center and passed out fake dollar bills with President Obama's face on the front and the sentence "Obama's stimulus plan makes your money as worthless as monopoly money" on the back. One hour into this symbolic protest, Bucknell administrator Judith L. Mickanis approached the students and told them that they were "busted," that they were "soliciting" without prior approval, and that their activity was equivalent to handing out Bibles.

The students protested, but despite the fact that Bucknell's solicitation policy explicitly covers only sales and fundraising materials, Mickanis insisted via e-mail that prior permission was needed to pass out any materials—"anything from Bibles to other matter."

They also got busted for the old "affirmative action bake sale":

A video recording shows that an hour into BUCC's protest, Associate Dean of Students Gerald W. Commerford arrived and informed the students that he had the "opportunity" to shut down the sale because the prices they were charging were different (lower) than what they had listed on their event application. The students offered to change the prices on the spot, but Commerford refused and insisted that they close the event immediately and file another application for a later date.

Accordingly, BUCC members filed an application to hold the same event two weeks later, but were then told that they would have to obtain the permission of the Dean of Students to hold a "controversial" event. No such permission is required by Bucknell policy. When the students nevertheless attempted to get this special permission, Commerford rejected the request. In a recorded conversation, Commerford said that such a bake sale would violate Bucknell's nondiscrimination policy, even with satirical recommended (not actual) pricing, and that the only event he would approve on the topic would be a debate in a different forum altogether. This novel restriction also does not exist among Bucknell's official policies.

Yes, says Mark Tushnet, in this interesting essay, and see his Opinio Juris posts here and here. By globalization of constitutional law, he means “convergence among national constitutional systems in their structures and in their protection of fundamental human rights” but short of uniformity and with no claims about the rate of convergence (could take one year or one thousand years). I find this idea much more puzzling than Tushnet or his commentators do. Consider –

1. The argument resembles the “end of history” argument made famous by Francis Fukuyama. Fukuyama argued that the collapse of communist systems from 1989 to 1991 made clear the (eventual…) ultimate domination of liberal market-based democracy around the world. Fukuyama’s argument looks less good today, what with the rise and rise of authoritarian China, the recovery of authoritarian Russia, the spread of Islamist thought, and the resurgence of socialism or whatever it is in places like Venezuela. But this is the question: is Tushnet’s thesis just a version of Fukuyama, or is he saying something different?

2. Fukuyama had a specific mechanism in mind: he argued that technology develops unidirectionally. The ancient Greeks were wrong to think that history moves in cycles; history moves in a straight line because of the accumulation of knowledge. The connection between technological advance and liberal democracy was the weak link in his argument; technology serves China very well. Does Tushnet adopt this mechanism or does he have something else in mind?

3. Tushnet does discuss mechanisms, different ones. One is the idea that judges meet each other at Alpine conferences and exchange ideas. Why judges? Judges played no role in the collapse of communism, which was the key moment for modern convergence. Nor did they play a role in the collapse of authoritarian systems in the 1970s, or for that matter in the collapse of fascism. Why should we think they play an important role in constitutional convergence in general? In our country, of course, they change the constitution on what seems like a day-to-day basis. But outside crazy United States, the main agents for constitutional change are not judges but legislatures. Well, of course, legislators meet their counterparts in the Alps and elsewhere, and no doubt exchange ideas. Suddenly, this idea of people influencing each other gets less exciting. Government officials and others have always met with each other and paid attention to what is going on in other countries, and often self-consciously imitated what is going on in other countries. Think of the Japanese during the Meiji Restoration sending out delegations to learn what works and what doesn’t work in the west. Is Tushnet’s claim that constitutions have been converging since the beginning of the state system? Or that it is a post World War II (or post cold war) phenomenon? What has changed exactly?

4. Tushnet discusses another mechanism. States compete for capital. Investors will send capital to states with better institutions, all else equal. Thus, states have an incentive to improve their institutions toward some optimum; hence, convergence. But must there be only one optimal set of institutions? Perhaps, there are multiple equally good sets of institutions. How do we know?

5. So states have been imitating each other for centuries, and they have also competed for capital and migrants and trade and resources and much else. So if Tushnet’s mechanisms are accurate, we should have observed convergence taking place long ago, with one state stumbling upon whatever works best through experimentation and then other states copying the first state. And yet—states seem to be getting different all the time. Surely, there was divergence from, say, 1900 to 1930. And are we so sure that divergence is not occurring even today? Consider the way that European countries have modified their constitutions so as to yield authority to European institutions. This activity has perhaps caused European constitutions to converge, but to diverge with respect to non-European constitutions, which do no such thing.

6. Convergence then seems like such an obvious phenomenon; the puzzle is why states didn’t converge long ago, and why they often seem to diverge. What accounts for the rise of socialism, and all the constitutional changes it wrought? What accounts for the rise of Islamist thought—witness the constitutional changes it brought to Iran. These are big questions that swallow up the constitutional convergence thesis. Even as states imitate each other and compete for capital and converge, people living in those states are saying, “We don’t like this one bit!” They conduct a coup or a revolution or some such thing, put into place a new model that others like, and divergence is on its way. Does Tushnet really think that this can no longer happen? And that is why constitutional convergence is now (or has always been?) inevitable?

The American bankruptcy system is a hybrid of state law and federal bankruptcy law. Under the Butner principle, federal bankruptcy courts preserve non-bankruptcy law substantive entitlements in bankruptcy unless bankruptcy policies compel a contrary result.

This hybrid system, however, gives rise to the threat of forum-shopping if parties attempt to invoke bankruptcy jurisdiction for improper purposes, namely to rearrange non-bankruptcy entitlements to advance no coherent bankruptcy policy. Modern developments in bankruptcy law, as exemplified in the case of Marshall v. Marshall raise a novel threat of bankruptcy forum-shopping. Marshall involved the bankruptcy of tabloid starlet Anna Nicole Smith and her efforts to recover from the estate of deceased billionaire oilman J. Howard Marshall. Rather than deferring to the processes of the Texas probate court, Smith raced into bankruptcy court in California to capture a large share of Marshall’s estate. The technical issue in the case concerns whether the dispute constituted a “core” matter under federal bankruptcy law and thus the timing of the entry of a final judgment by the bankruptcy court. If the Marshall Bankruptcy Court’s decision is allowed to stand, it could set a precedent for rampant forum-shopping by dissatisfied parties seeking a more favorable resolution of claims in federal bankruptcy court than that to which they would be entitled under state law.

Just thought I'd note that you can reach our readers -- at an estimated 310,000+ ad impressions per week -- for a mere $200/week, or $450/week for the upper right hand corner ad. (Those are the June 2009 prices, which may rise.) And such high-quality readers, too!

Lysander Spooner's Post Office:
In an address given in 1844, abolitionist Charles Dexter Cleveland contended that the U.S. Post Office not only suppressed abolitionist writings, but also provided a massive subsidy from the profitable Northern routes to the unprofitable Southern routes. It occurred to me that this consideration could well have explained why abolitionist Lysander Spooner decided to establish his private American Letter Mail Company in 1844 to compete with the Post Office. While obtaining additional information about Spooner's enterprise, I came across this recent account of Spooner's venture: Lysander Spooner and the United States Postal Monopoly by Michael Billy.

On May 11 the US Post Office is raising the price of stamps by 2¢. Even in the face of increasing prices, many people will argue that the Post Office is necessary because a private organization could never perform these functions for a similar cost. The story of Lysander Spooner, however, might rekindle the debate over the necessity of a monopoly Post Office.

Although Billy does not pursue the antislavery angle, he does supply a number of interesting details. For example,

Spooner ran a front page ad in the New York Daily Tribune announcing the creation of the company, while stating that his rates would be 6.25 cents per half-ounce letter, or 20 stamps for a dollar. He also stated that delivery would be daily, or twice daily between New York and Philadelphia. The most audacious part of the ad, however, was his direct challenge to the Constitutionality of the Post Office: "The Company design also (if sustained by the public) is to thoroughly agitate the questions, and test the Constitutional right of the competition in the business of carrying letters - the ground on which they assert this right are published and for sale at the post offices in pamphlet form." Spooner wanted competition to be legal.

He even went as far as to send a personal letter to the Postmaster General informing him of his intent to form a letter delivery company. In the letter Spooner said that he proposed, “soon to establish a letter mail [company] from Boston to Baltimore. I shall myself remain in this city, where I shall be ready at any time to answer to any suit. . . .” Accompanying the letter was a copy of his pamphlet, The Unconstitutionality of the Laws of Congress Prohibiting Private Mails.

If you have any interest in Spooner (or in alternatives to the Post Office), you should read the whole thing. Spooner's essay against the constitutionality of the postal monopoly can be found here.

Martha Minow is New Dean of Harvard Law School:
This just in: Professor Martha Minow has agreed to serve as the next Dean of Harvard Law School. She will take up her duties on July 1. I think I speak for my co-Conspirators in wishing her all the best. Press release is here.

Like everyone else, I've been following the kerfuffle around "the wise Latina" remark. Here's my short take on it:

1. I think she probably meant it when she said that she believed that her background and upbringing would make her a "better" judge than a white man (or white woman). I don't think she meant it would merely make her "different," I think she probably really thought (and thinks) it makes her "better." She has said similar things enough to suggest that she truly believes it.

2. That she believes it does not make her a racist. Similar statements could be made if a dwarf or a football player or an immigrant or someone who overcame cancer or a former astronaut were nominated--that their background makes them a "better" judge than someone who lacks that background.

3. That idea--that your background can make you a "better" judge--is, in my personal opinion, a silly idea that mischaracterizes the proper view of a judge. Nonetheless, it is a perfectly mainstream view in the academy and legal profession today--which I suspect accounts for how uncontroversial her statements seemed when they were uttered at places like Berkeley. Anyone who has attended a faculty workshop in the past decade at least wouldn't bat an eye when someone says something like she said. It is sort of lowbrow legal realism, perhaps tinged with a bastardized critical race studies view of the law, taken to its extreme. She was really just parroting something that she picked up along the way during her life. The statement is the sort of thing that sounds like a sophomore philosophy student who is active in the sorts of circles she spent her education in and has never been pressed to actually examine that conventional wisdom. Frankly, I find it to be sort of an intellectually embarrassing statement for someone of her education and distinction to hold. I'm not even sure she has the slightest idea of what that statement means and has never seriously thought about it. It is just something you say when you move in those circles and everyone nods their heads seriously.

4. Given the lightweight and intellectually unserious way in which she states the principle, it is hard to imagine that this would actually affect her judging, as opposed to being the sort of thing that you say when you are trying to appear profound in an academic setting. This really is the sort of stuff that gets spouted a thousand times a day on university campuses all over America. There are academics who work these things out and defend the conclusion. I don't think that Sotomayor is one of those people--she is just a lawyer/judge who picked up some third-hand rendition of the idea and decided it sounded profound. I don't think it even amounts to a jurisprudential philosophy as much as just repetition of the conventional wisdom in her circles.

5. The idea that one's life experience matters to judging is exactly what President Obama had in mind when he suggested that "empathy" is an important attribute of a judge. The view is quite mainstream in their legal circles, from what I can tell, and even though I disagree with it I understand the logic of the argument.

6. In my opinion, Sotomayor's comments are way, way more relevant and concerning than the outrageous (in my view) attempts to attack Justice Alito over his membership in "Concerned Alumni of Princeton." The McCarthyite attacks that were made on Alito about CAP and to try to suggest that it suggested that he was a racist or a sexist were way beyond the pale and in many ways a new low in confirmation hearings. Sotomayor's statements are at least relevant if one considers judicial philosophy to be relevant as they seem to suggest that she believes that a judge's personal experience should be relevant to judging (at least that's how I read the idea). The attacks on Alito were just crude character assassination.

6. I think this might be the most interesting issue that arises in her confirmation hearing--will she try to justify her statement or back away from it? Will she say that "better" really means "different" or that she really believes that she is a "better" judge as a result of that experience? There seems to be a sense that what is a fairly commonplace view in the legal academy and activist circles is out of step with what the majority of Americans think of as being the proper role and character of a judge. It will be interesting to me to see how this culture clash gets navigated. Obama says that she "misspoke"--but unless I'm mistaken, he has never explained what she actually intended to say. Obviously she should be given an opportunity to clarify her views--it will be interesting to see how exactly she decides to clarify them.

7. My bottom-line view is that none of this should really matter. When it comes to the Senate's Advise and Consent role I think that the Federalist Papers (as I read them) pretty much have it right--the purpose of the Advise and Consent role of the Senate is to make sure that justices nominated by the President have the integrity, experience, ability, and independence to uphold the Third Branch as a coequal branch of government. As I read it, the purpose of shared authority between the President and Senate is to make sure that justices who are appointed are not cronies of the President but will act as an independent third branch.

I also recognize that this is a fairly naive view of Senate confirmation post-Bork. From a political, rather than constitutional perspective, I have no opinion as to whether it is worth it for opponents of Sotomayor to try to attack her the way that Bork and Alito were smeared, although simply for the good of the country I would hope that they wouldn't sink to quite those depths.

Newsletter Doesn't Become an "Advertisement" Just Because It Implicitly Promotes the Author's Professional Expertise

Last year, I blogged about Stern v. Bluestone, a New York decision that found a malpractice lawyer's (and legal blogger's) "Attorney Malpractice Report" newsletter to be advertising, because it implicitly promoted the author's professional services. I pointed out that the decision's rationale would apply to blogs, articles, treatises, and other materials that likewise implicitly (and usually deliberately) encourage people to hire the author. And though the case involved penalties for unsolicited faxes, its rationale would equally have applied to other speech restrictions:

And if the material is treated as "commercial speech," then the consequence isn't simply that it can't be sent as an unsolicited fax (something we law bloggers certainly don't do). Rather, we might well become strictly liable for any false statements we might post, rather than being protected by the "actual malice" test and the like. We would be punishable for any statements that the Bar might find to be "misleading." We could be required to post a wide range of government-compelled statements, which usually can't be required for nonadvertising media, but can be for advertisements. And the government might even be able to impose broader content-based restrictions on our speech, so long as the restrictions pass muster under the weaker Central Hudson test rather than the very demanding strict scrutiny test.

During the roughly 16-month period from November 25, 2003 through March 29, 2005, plaintiff Peter Marc Stern, a solo practitioner, received 14 unasked-for facsimile messages (faxes) from defendant Andrew Lavoott Bluestone, a solo practitioner who specializes in bringing attorney malpractice actions. Each fax was entitled "Attorney Malpractice Report," and included Bluestone's contact information and web site addresses. The body of each fax consisted of a short essay about various topics related to attorney malpractice: fee disputes with clients, the elements of professional malpractice, liens, common causes of attorney malpractice litigation, and unexpected circumstances in which claims of attorney malpractice arise....

In 2006, when it amended its rules implementing the TCPA and the Junk Fax Prevention Act of 2005, the Federal Communications Commission (FCC) elaborated on what constitutes an "unsolicited advertisement." With respect to "informational messages" via facsimile, the FCC stated that

"facsimile communications that contain only information, such as industry news articles, legislative updates, or employee benefit information, would not be prohibited by the TCPA rules. An incidental advertisement contained in such a newsletter does not convert the entire communication into an advertisement ... Thus, a trade organization's newsletter sent via facsimile would not constitute an unsolicited advertisement, so long as the newsletter's primary purpose is informational, rather than to promote commercial products."

We conclude that Bluestone's "Attorney Malpractice Report" fits the FCC's framework for an "informational message," and thus the 14 faxes are not "unsolicited advertisement[s]"
within the meaning of the TCPA. In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, "[a]n incidental advertisement"
of his services, which "does not convert the entire communication into an advertisement."

This doesn't directly deal with the First Amendment question of whether such faxes are less-protected "commercial speech" (a term of art which roughly means "commercial advertising") rather than fully protected speech. But at least it sets aside the lower court decision that they are indeed less constitutionally protected.

I should note that there are plausible arguments that the government might be free to bar all unsolicited faxes, commercial or otherwise — or implement a "do not fax" list that applies equally to all such faxes — on the grounds that they wrongly trespass on recipients' property and consume recipients' resources. But the law doesn't didn't do that: Rather, it limits itself to commercial advertising. It's therefore important (both to the applicability of this statute and to the applicability of other rules) to properly distinguish what constitutes restricted (and more broadly restrictable) commercial advertising, and what doesn't.

Blogging will be light for me over the next few days, as I am in Palo Alto at the Hoover Institution for a meeting of the Hoover Task Force on National Security and Law. We will workshop some papers over the next day and a half.

But I will also add that this is the institution that just recently published economist John Taylor's Getting Off Track: How Government Actions and Interventions Caused, Prolonged, and Worsened the Financial Crisis. It's a short, barely 90 pages essay focused mostly on the monetary issues in the financial crisis. It is also one of the handful of books crucial to understanding the financial crisis and how it came about - I can't recommend it highly enough. I got it and read it in a single late night sitting, then read it again, this time going carefully through the numbers, which tell a remarkable story.

I'll be back to a more regular schedule when I'm done here. By the way, when academics die and go to heaven, it looks like the Hoover Institution. Really great place, and I am very grateful to have its support.

Wednesday, June 10, 2009

The Milwaukee Journal-Sentinel has an article describing what seems like a classic example of the use of eminent domain to take private property for the purpose of giving it to politically influential interests (HT: VC reader Rob Driscoll]:

Employing a rarely used provision of city code, Milwaukee officials are poised to take two commercial lots from one owner and then sell them to another developer who has made campaign contributions to a key alderman.

If the land acquisition goes through, it will dash the dreams of Rafael Cetina, whose family bought the land in 2002 with visions of building a restaurant and club that would serve spicy Mayan flavors paying tribute to his heritage on the Yucatan Peninsula....

The family that owns and operates Pete's Fruit Market would benefit from the deal. They made $2,000 in campaign contributions last year to Ald. Jim Witkowiak, who has played a major role in the city's plans to take the land from Cetina.

Witkowiak says he has known the market's owner since he first began selling fruit, and helped him acquire a permit. But he said that has not compromised his judgment.

"I definitely want to see the area redeveloped in a positive way," he said.

On Tuesday, the city's Zoning, Neighborhoods & Development Committee, chaired by Witkowiak, voted to approve the land acquisition. The ultimate decision will rest with the Common Council.

The Cetinas bought the first parcel in 2002 and spent $200,000 on everything from steel framing to lighting fixtures to eventually build the restaurant and club. He is now weeks away from losing the land to the city.

Two weeks ago, the city's redevelopment authority deemed the vacant land blighted and voted to use eminent domain to buy the property. Cetina said he has gotten a raw deal and is losing his land because the city doesn't want a nightclub there....

Milwaukee aldermen exert great influence over licensing decisions in their districts through a well-established system known as aldermanic privilege. Aldermen typically defer to the wishes of the local council member on such matters, giving the local official unofficial veto power...

Wisconsin is one of many states that has passed post-Kelo reform laws that purport to constrain these sorts of abuses, but actually provide little or no real protection for property owners. I discuss Wisconsin's statute on page 26 of this forthcoming article, which also covers many similar loopholes in other state's laws. Like many of the other states, Wisconsin forbids the use of condemnation for "economic development," but allows much the same kinds of takings to go on under the cover of alleviating "blight." As is typical of many such statutes, Wisconsin's new law defines "blight" so broadly that virtually any area can be declared blighted if the local government wants to take property located there. The city appears to be utilizing the "blight" loophole in this case, and they may well win in court on it.

I think it perfectly possible that Alderman Wytkowiak is sincere in his belief that he wasn't influenced by the fact that the condemned property will be sold to an important campaign contributor of his. Unfortunately, however, many dubious condemnations occur in part because people are very good at persuading themselves that anything that advances their self-interest also benefits the public. Such factors were a big part of the story behind the Kelo takings as well.

President Barack Obama is due to unveil a raft of executive compensation reforms as early as Wednesday that will see the pay of the top 100 employees of bailed-out companies vetted by a new official.

A new Special Master, expected to be Kenneth Feinberg, the former head of the 9/11 compensation fund, will have the power to reject pay plans from companies receiving “exceptional assistance” from the government, according to an administration official.

Treasury Secretary Timothy Geithner is about to hold a press conference where he'll announce how the new regulations will work. Here are the guidelines:
1. The Special Master will have the power to reject plans from companies with exceptional assistance that he deems to have excessive or inappropriate salary.
2. The Special Master will review the compensation structures for the top 100 salaried employees.

Does anyone else think it appropriate that Feinberg's title will be "Special Master"? Maybe this is striking me this way because, for the past few days, I have been immersed in antislavery writings about the Constitution.

We were disappointed last year when the Supreme Court ruled that the right to keep and bear arms was an individual right, giving short shrift to the first part of the amendment, which refers to "a well-regulated militia." But we also believe the court has been right to use the doctrine of incorporation to bind states to the most important protections of the Bill of Rights. If those vital provisions are to be incorporated in the 14th Amendment, so should the right to keep and bear arms.

UPDATE: Whoops, an HTML error initially caused most of the post to be cut off; sorry about that.

The manuscript for my new coursebook with Maxwell Stearns, Public Choice Concepts and Applications in Law, was sent off to West on Monday. We expect page proofs in September or thereabouts with hard copy shipping in October. It will be published by West.

If you are interested in seeing the book for possible adoption to teach the course drop me an email and I'll get you on our distribution list. The book will certainly be available for use for Spring 2010 semester. If you are interested in teaching the course during Fall 2009 we can try to make that work too. We already have all the materials posted on a TWEN page for download in manuscript form.

The book is suitable for teaching as a paper-writing seminar or as a course with a final exam. It is also suitable for use to teach a similar course in Economics or Political Science. It is also suitable, I think, for those who have been teaching classes in Law & Positive Political Theory, as we integrate those materials into this project. We have organized the book conceptually so that even though the case illustrations are drawn from American law it can be used in foreign countries as well.

The book will be published in paperback so the price should be affordable. Drop me a line if you want more information or are interested in adoption.

My colleague Nathan Sales has posted an interesting working paper on intelligence agency information sharing. Congress has frequently told intelligence agencies to share more information among themselves. Nathan looks at the incentives of the various agencies to do that. Some useful public choice insights.

Here's the abstract:

Why don’t intelligence agencies share information with each other? This article attempts to answer that perennially vexing question by consulting public choice theory as well as insights from other legal disciplines. It begins by surveying arguments for and against expanded sharing, examples of sharing failures, and recent reforms intended to encourage sharing. Next, the article considers why intelligence agencies see information sharing as a threat to the various values they maximize, such as influence over senior executive branch policymakers and autonomy to pursue agency priorities. It then proposes a series of analytical frameworks that enrich our understanding of why agencies resist sharing: At times data exchange resembles an intellectual property problem, sometimes it looks like an antitrust problem, and sometimes it looks like an organizational theory problem. Finally, the article examines whether the solutions suggested by these other disciplines can be adapted to the problems of information sharing.

Tuesday, June 9, 2009

There have been a bunch of cases on this over the past couple of decades, and I don't have a big picture opinion about them. But it does seem to me that this particular opinion is quite unpersuasive.

The curfew barred under-17-year-olds who aren't accompanied by parents from being out in public from 11 pm to 5 am (or between midnight and 5 am Fridays and Saturdays); it had some exceptions, for employment, emergencies, various events, and exercise of "fundamental rights such as freedom of speech or religion or the right of assembly ... as opposed to general social association." Rochester's chief argument was that the curfew would reduce crime by and against under-17-year-olds. But the court didn't buy it:

Although the statistics show that minors are suspects and victims in roughly 10% of violent crimes committed between curfew hours (11:00 p.m. to 5:00 a.m.), what they really highlight is that minors are far more likely to commit or be victims of crime outside curfew hours [footnote: Looking at the hourly breakdown of minors as crime suspects and victims, more than three-quarters (75% to 86%) of all crimes that minors commit and are victims of take place during non-curfew hours.] and that it is the adults, rather than the minors, who commit and are victims of the vast majority of violent crime (83.6% and 87.8% respectively) during curfew hours. The crime statistics are also organized by days of the week and despite that minors are 64% to 160% more likely to be a victim and up to 375% more likely to be a suspect of violent crimes on Saturdays and Sundays as compared to a given weekday, surprisingly, the curfew is less prohibitive on weekends. We also note that the methodology and scope of the statistics are plainly over-inclusive for purposes of studying the effectiveness of the curfew.

To be sure, minors are affected by crime during curfew hours but from the obvious disconnect between the crime statistics and the nighttime curfew, it seems that “no effort ... [was] made by the [City] to ensure that the population targeted by the ordinance represented that part of the population causing trouble or that was being victimized.” If, as the dissent argues, it is enough that from 2000 to 2005 a number of juveniles were victimized at night, then the same statistics would justify, perhaps even more strongly, imposing a juvenile curfew during all hours outside of school since far more victimization occur during those hours.

The last sentence I quoted, I think, helps show the weakness of the court's analysis. Of course a juvenile curfew during all hours outside of school would likely protect minors from crime more than a late-night curfew would. But the city isn't singleminded focused solely on protecting juveniles from crime. It also wants them to have fun -- to enjoy, to a considerable extent, the liberty that adults have.

The real reason for nighttime curfews isn't that 11 pm to 5 am are the times of maximum vulnerability for under-17-year-olds, and certainly not that under-17-year-olds are the main source, or even a disproportionate source, of crime during those hours. Rather, it's that Rochester government (and quite possibly Rochester voters) think that keeping minors off the street from 11 pm to 5 am is a fairly modest restriction on their liberty and happiness, in a way that keeping them off the street from 3 pm to 8 am would not be. This also explains why letting minors stay out until midnight on Fridays and Saturdays shouldn't be at all "surprising[]"; it's an accommodation of the desire to let under-17-year-olds enjoy themselves longer on non-school nights than on school nights.

Now maybe the government has no business protecting 16-year-olds this way, especially when their parents disagree with the government's protective plans. As I mentioned, I have no firm opinions on the scope of minors' rights to liberty of movement, or on parents' rights to allow their minor children freedom of movement without interference from the government.

But the court doesn't take this view, it seems to me. It says that children's rights to freedom of movement are substantially lesser than adults' rights, and are potentially restrictable if the law passes "intermediate scrutiny," which is to say is "'substantially related' to the achievement of 'important' government interests." It seems to suggest that if the law were sufficiently linked to the prevention of crime by or against under-17-year-olds, it would be constitutional. And it rests its rejection of the law on the grounds that "Quite simply, the proof offered by the City fails to support the aims of the curfew in this case," for the reasons I mentioned above.

This, it seems to me, is a common problem in cases that use intermediate scrutiny, or "means-ends scrutiny" more broadly (such as strict scrutiny): A court focuses on one interest, and argues that the law is a poor fit with that interest. But most laws aim at serving a bunch of different interests at once. Here, the government is trying to reduce crime by and against under-17-year-olds (hence the presence of some curfew). It's trying to reduce this crime with minimum impact on full-fledged adults, who the court seems to acknowledge have broader rights than minors do (hence the limitation of the curfew to minors, even though adults commit most of the crimes). And it's trying to reduce this crime with only a modest impact on 16-year-olds' ability to have fun.

If the law is to be struck down, it shouldn't be because the city lacks sufficient "crime statistics," or because adults commit many more crimes than minors, or because children are more often victimized on Saturdays and Sundays. Intermediate scrutiny, at least as the court has applied it, seems to have been more of a distraction than a helpful guide.

The dissent also seems right in pointing out (assuming the record evidence supports it -- I haven't looked at it) that "Of course minors are more likely to commit or be victims of crime outside curfew hours. For one thing, the curfew hours comprise only 40 out of the 168 hours in a week. As to the likelihood of becoming crime victims, most children are at home during the curfew hours, as the defendant Mayor noted. But it certainly does not follow that a child who goes out at night is less likely to become the victim of a crime than one who goes out during the day. Again, it is completely unsurprising that adults commit and are victims of most crimes during curfew hours. Adults commit more crimes than children at all hours. Indeed, this may simply be an instance of the general truth that adults, who make up some three-quarters of the population, are more likely to do anything." But that too shouldn't, I think, be the heart of the argument, for the reasons I gave above.

(The court also reasons that the law unduly interferes with parental rights, chiefly because it doesn't have an exception for children who have their parents' approval to be out. But under the court's view of parental rights, it seems that if the protecting-children rationale were accepted as a justification for restricting the children's rights, it would likely be accepted as a justification for restricting the parents' rights, which aren't that strongly protected in any event. That's why I keep the already longish post above focused on the children's rights question.)

Apparently (according to the Oxford English Dictionary, the term comes from the French "couvre, imper. of couvrir to cover + feu fire." It was originally "A regulation in force in mediæval Europe by which at a fixed hour in the evening, indicated by the ringing of a bell, fires were to be covered over or extinguished." "The primary purpose of the curfew appears to have been the prevention of conflagrations arising from domestic fires left unextinguished at night. The earliest English quotations make no reference to the original sense of the word; the curfew being already in 13th c. merely a name for the ringing of the evening bell, and the time so marked." I did not know that!

A colleague asked me: Which is correct, "premier lawyers in the country" or "premiere lawyers in the country"? I was inclined to say "premier" for "foremost," and save "premiere" for "opening night." But a quick dictionary check suggested that "premiere" could mean "foremost," too"; I saw this both in the American Heritage and in the Oxford English Dictionary. So I don't see how one can say that either is "incorrect."

But my colleague, I thought, didn't really want to know which was "correct"; he wanted to know which was better. And for that, it seems to me the answer is the more common term, which is less likely to be jarring, confusing (even briefly), or perceived (even wrongly) to be incorrect. So I Googled, and it turned out that my initial inclination matched usage: "Premier lawyer" got 40 times more hits than "premiere lawyer."

Now I should acknowledge the limitations of this. Sometimes one may consciously prefer the less common term. Sometimes one may want the term that is more common within a particular professional community, and not English usage generally; in particular, if you have free Lexis, you might want to search edited newspapers prose in preference to unedited Internet prose. Sometimes usage is split more evenly, so the results are less definite. (Perhaps the slightly more common term is seen by some, rightly or wrongly, as inferior, so one might want to go with the slightly less common term.) And sometimes the searches might be skewed by false positives (e.g., "Defendants were 'operatives' for B.C. Premier, lawyer argues").

But when one term is 40 times more common than the other, it's a pretty good bet that one should go with the more common term, unless one has a compelling reason to the contrary. In Horace's words, follow "the will of custom, in whose power is the decision and right and standard of language."

I've had previous occasion to blog about "morbidly interesting" anti-Israel blogger Philip Weiss, whose posts I come across occasionally. Morbidly interesting because though of Jewish background, he consistently rails against his own Jewish upbringing and is hostile to most things Jewish (the great exception I've noticed being Jewish leftism), has at least one overt anti-Semite on his blogroll, and has commenters who in my experience mostly range from the Pat Buchanan "left" to the David Duke "right," which seems to bother him not in the least. He has nevertheless(?) achieved a certain level of credibility on the anti-Israel left (e.g.), because he tenaciously tracks down every story that makes Israel and its Jewish supporters look bad, providing lots of fodder for Israel's critics.
So now one of his compatriots went to Jerusalem, took two hours of footage of a bunch of drunk American Jewish teenagers in a bar, edited it down to four minutes of footage ranging from gross stupidity (poli sci major who never heard of Netanyahu) to gross racism about Obama. Weiss then posted it on his blog, as a "Mondoweiss Production."

For reasons that escape me, the video has been viewed over 200,000 times, and now a story about the video has now been linked by Drudge, guaranteeing many more hits.

So what's the point? The director, Max Blumenthal, claims the high-minded purpose of showing that the "sense of entitlement that the American Jewish community has when it comes to Israeli policy is on full raw display in the words of these young adults," as if finding a bunch of drunk teenagers in a bar and displaying the most outrageous 3% of their subsequent comments really tells you anything about anything.

Unfortunately, while commentators have been appropriately skeptical about value the video (and appropriately critical of the idiots in the video and their teachers), I don't think that most of the commentariate really appreciate where Weiss, et al., are coming from. If so, they'd treat it the same way they'd treat an equivalent video coming from a website run by some of Weiss's less charming commenters and blogrollers-- which is why I'm not going to link to it.

UPDATE: On a tangentially related note, imagine the fun Weiss would have with this quote, if it came from an Israeli, rather than from a Hamas-affiliated Palestinian matchmaker: "If we see a girl that appears to match (a man), but she's not physically what he wants, I'll call him and say, 'Well, she's pretty, but she's dark.' Or 'she's short, but she's white.'" H/T Instapundit.

to be pared back? As fault lines emerge among private and public players? Two good articles today on the pace and direction of the regulatory reform of financial services and financial markets. I'm light-blogging the next couple of days, as I'm traveling to Palo Alto for a meeting of the Hoover Task Force on National Security and Law, and so mostly thinking about things like counterterrorism, direct part in hostilities, predators and targeted killing ... but these are articles are timely, well-reported, and useful to those of us keeping track of regulatory reform.

The first, by Zacharay Goldfarb in the Washington Post, Tuesday, June 9, 2009, gives an excellent overview of the "fault lines" developing over the direction of financial services overhaul. The result of the lobbying battles is

likely to shape how much profit banks will make, who can get a mortgage, which federal regulators oversee different corners of the economy -- and, ideally, whether the government is prepared for future financial threats.

With so much money and power on the line, interests inside the government and out are not waiting for the administration to reveal its plan, which sources say will be detailed next week. Lobbyists for financial firms and consumer activists, among others, have been meeting privately with the Treasury Department and the White House to press their views, according to people briefed on the discussions.

So who is on what side of what? What are the fault lines that are forming - fluid, as Goldfarb notes - but coalitions joining and shifting:

-- Financial firms, for instance, have closed ranks in vigorously opposing a proposal for how mortgage lending, credit cards and mutual funds will be regulated.

-- Big banks are squaring off against smaller ones over proposals for consolidating regulatory powers in a few agencies.

-- Banks and hedge funds find themselves on opposite sides in the debate over how to regulate the trading of derivatives, an exotic financial instrument that aggravated the financial crisis.

-- And government agencies, jealous of one another's existing powers and prestige, are also clashing over plans to redistribute their authority.

The article walks, offering very useful interviews, through each of these categories. The second article is from the Tuesday, June 9, 2009, Wall Street Journal, and the front page headlines is quite categorical: "Finance Reforms Pared Back." It offers the case that the "Obama administration is backing away from seeking a major reduction in the number of agencies overseeing financial markets ... [according to sources] the current alphabet -soup of regulators will remain mostly intact."

My feelings about this are very mixed, for all the usual reasons of trying to regulate a system that shares hugely important features as a system (as in, systemic risk) but also has many apples and oranges and kiwis and star fruit, too. The former argues for a single overarching regulator; the latter, for the alphabet-soup. That's all I can say now, but the articles are well worth reading.

Judge Sonia Sotomayor would not have been my first pick to replace Justice David Souter – nor, for that matter, would have anyone else on President Obama’s reported short list. Beyond credentials and experience, his criteria and mine scarcely overlap. He sought a progressive justice with a particular sort of “empathy.” I would have preferred an originalism-oriented conservative minimalist with a libertarian streak. But this difference in judicial philosophy is not enough, in my view, to justify opposing her confirmation.

There is no question Judge Sotomayor is qualified to be a Supreme Court justice. She has substantial legal experience and is a tremendously accomplished woman. Some of her rulings as a district and appellate judge raise concerns, as do some of her speeches, and I expect that, once confirmed, Justice Sotomayor will write and join many opinions with which I disagree. Yet because I believe the Senate should show the President a fair degree of deference in the judicial confirmation process, particularly when it comes to judicial philosophy, I see insufficient reason to oppose her confirmation. Barring some extreme (and extremely unlikely) revelation, I would encourage the Senate to confirm her before the start of the Supreme Court’s next term.

Some with whom I often agree, including some of my co-bloggers, do not believe the Senate owes the President so much deference. Ilya Somin thinks the Senate should consider ideology in the confirmation process. My friends Michael Rappaport and John McGinnis would go farther, endorsing a de facto super-majority requirement for all Supreme Court nominations. They make a good case, but I am not yet convinced. I fear that a political culture in which the Senate is less deferential and is a political culture in which too many exceptional individuals will be precluded from potential service on the Court. I would rather (re)establish a norm of focusing on a nominee’s experience and credentials, instead of their judicial philosophy.

Then-Senator Obama adopted a quite different view. He accepted that ideology and judicial philosophy are legitimate grounds for opposing a nominee’s confirmation. On this basis he opposed two highly qualified, mainstream conservative nominees, voting against John Roberts and supporting a failed filibuster attempt against Samuel Alito. If then-Senator Obama’s standard is the correct one – that is, if Senators should vote against highly qualified nominees on purely ideological grounds – then I see little reason for Senate Republicans not to vote against Sonia Sotomayor. What’s sauce for the goose is sauce for the gander. She is a highly qualified, mainstream liberal nominee, just as Samuel Alito was a highly qualified, mainstream conservative nominee, and once confirmed Justice Sotomayor is likely to fit in just as comfortably on the liberal wing of the Court as Alito has on the conservative side.

So if then-Senator Obama’s conception of the Senate’s role in advise and consent were the correct one, conservatives who follow his lead would urge opposition to – and perhaps even a filibuster of – Judge Sotomayor’s confirmation. But I believe then-Senator Obama endorsed the wrong standard. And so I hope Senate Republicans are disinclined to follow his lead.

Insofar as some conservatives will oppose Sotomayor's confirmation, arguing the Senate owes no meaningful deference to a President's judicial nominees and that she is too liberal to warrant their support, I further hope they will make every effort to keep the discussion on a civil plane. Opposing a nominee on substantive grounds is one thing; name-calling and personal disparagement are another.

Unfortunately, in the past few weeks we have seen quite a few extreme and intemperate attacks on Judge Sotomayor. The process and judicial nominees of both parties deserve better. Some on the Left were quick and careless to label Judge Charles Pickering a “racist”; now some on the Right have committed the same offense against Judge Sotomayor. (And, yes, calling her a “racialist” is just as bad). Whatever was said against Pickering, Clarence Thomas, Miguel Estrada, Priscilla Owen, et al., does not excuse the current descent into gutter politics and gross ad hominem attacks.

As I’ve noted in previous posts, I have concerns about Judge Sotomayor’s now infamous “wise Latina justice” speech. Placing her remarks in context adds some depth and nuance, but it does not make my concerns go away. Steve Chapman, for one, thinks the context makes the statements worse. Yet it is inaccurate and unfair to argue, on the basis of this and other speeches, that Sotomayor is a “racist.” To acknowledge that ethnic background and personal experience can and should influence judicial behavior, even while disparaging the ideal of judicial objectivity, is not to embrace racial bigotry. As Senator John Cornyn had the honor to observe, such attacks are “terrible” and “wrong.”

Now that the most extreme partisans on each side have had the chance to vent their spleens (and mail out their fund-raising appeals), I hope the debate over Sotomayor’s nomination will rise to a higher level. The Supreme Court matters, and a nomination to the Court presents an opportunity for serious discussion about the proper role of the judiciary (even if it’s not some grand “teaching moment”). But elections have consequences, and one consequence of President Obama’s electoral victory is that he gets to nominate judges for Article III courts.

Conducted substantively and civilly, discussion and debate over her record of judicial decisions and the likely effect of her confirmation could be edifying for the public (not to mention for our students). But this requires critics to present their critiques in a substantive and honest way. Unfortunately, much of the discussion about Sotomayor to date has failed to meet that standard. It’s not too late for something better.

[S]enators and others who speak out for nondiscrimination and against racial preferences will be falsely accused of playing the race card. The best response is to avoid inflammatory rhetoric while stressing the nondiscrimination principle and the real-life consequences that are at stake.

Consequences such as those described by Karen Lee Torre, the white firefighters' lawyer, in her December 2007 oral argument before the Appeals Court panel.

In response to Judge Rosemary Pooler's assertion that "no one was hurt" in the New Haven case, Torre said: "No one was hurt? For heaven's sakes, judge, if they didn't refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren't hurt? They're out $1,000 apiece [for test preparation].... They spent three months of their lives holed up in a room, like I was and you were when we took the bar exam."

Torre went on to emphasize why the test was a valid basis for making promotions — and what can happen when promotions go to people who have not done their homework:

"These men [are not] garbage collectors. This is a command position of a first-responder agency. The books you see piled on my desk are fire-science books. These men face life-threatening circumstances every time they go out.... They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined-space rescue, dirty-bomb response, anthrax, metallurgy.... The court [should] not treat these men in this profession as if it were unskilled labor. We don't do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow, they treat firefighters as if it doesn't require any knowledge to do the job....

"Firefighters die every week in this country .... A young father and firefighter, Eddie Ramos, died after a truss roof collapsed in a warehouse fire because the person who commanded the scene decided to send men into an unoccupied house... with a truss roof known to collapse early in [a] fire because of the nature of the pins that hold the trusses together.... And the fire chief had to go tell a 6-year-old that her father wasn't coming home."

Judge Sotomayor responded by observing that there must be "a fair test that could be devised that measures knowledge in a more substantive way."

Translation: New Haven needs a test that won't give such an advantage to the firefighters who have learned the most about fighting fires.

Monday, June 8, 2009

The major cap-and-trade bill now working its way through Congress is not without precedent. The European Union has had a cap-and- trade regime in place for years. It just hasn't worked so far.

Begun in 2005, the EU's Emissions Trading Scheme has raised energy prices with "uncertain" effects on greenhouse gas emissions, according to numerous studies.

Even green groups have been critical. The Natural Resources Defense Council, for example, has called ETS "an example of what not to do."

This failure has not daunted fans of Congress' cap-and-trade bill. They claim to have learned from the earlier mistakes.

"Those lessons have resulted in a pretty significant change in the way the U.S. system is being designed," said Sierra Club lobbyist John Coequyt, who calls Europe's program "ineffectual."

Carbon Copy?

Critics like Myron Ebell, a climate policy analyst for the free-market Competitive Enterprise Institute, see no reason to be that optimistic. He notes that the main problem with ETS was the giving away of the program's carbon allowances.

"Congressman Jay Inslee (D-Wash.) said we're not going to make the same mistake here," Ebell noted. "But as soon as it became apparent they didn't have the votes without big-business support, they started giving away all of the credits."

Indeed, the current bill began as a 100% auction of permits to emit greenhouse gases. It now would give away 85% of the permits to businesses, utilities and the like. . . .

Under the programs, carbon permits are either given away or auctioned off, with the government making fewer available each year.

A business with more permits than it needs can sell them to others, creating a market in carbon. As the permits become scarcer, firms therefore have financial incentives to reduce their emissions.

Euro Trash

That is how it works in theory. But it hasn't worked out that way in Europe, according to a study last year by the Government Accounting Office. The GAO is the nonpartisan fact-finding arm of Congress.

"The (ETS) program's effects on emissions are uncertain and its impact on sustainable development has been limited," the GAO said.

Individual EU nations tried to protect their local industries and ended up issuing more permits than there was total carbon output. In short, the permits never became scarce.

"In 2006, a release of emissions data revealed that the supply of allowances -- the cap -- exceeded the demand, and the allowance price collapsed," the GAO found. The EU told the GAO that it could not be certain ETS resulted in any reduction of emissions.

The price of permits fell from about 30 euros per ton of carbon dioxide in April 2006 to 0.1 euro in September 2007.

The collapse in carbon permit prices gave the EU industries little reason to innovate. The GAO found that there had been "no serious degree of private sector investment in cleaner technologies." . . .

Emissions did fall 3% in 2008, but experts on both sides agree that that was largely due to the recession, which has reduced industrial output and energy usage.

Meanwhile, energy prices for end users have risen sharply. From 2004 to 2007, household energy costs rose by 16% on average in the 25 EU countries and industrial rates rose by 32%, according to the European Commission.

If you're looking for cases or statutes that define a term, rather than all cases that mention the term in any context, search for WP(term), e.g.,

WP("DANGEROUS WEAPON")

This only works for those terms that West includes in its "Words and Phrases" books; but that's a pretty large set of terms.

Naturally, searching for all references to the term, rather than just for the WP() references, will give you a more complete list. But it may be far too complete, giving you thousands of cases. WP() searching will knock out many of the false positives, though at the risk of omitting some of the true positives.

Maybe most of you know about this feature or already, but some experienced lawyer and law professor friends I asked hadn't, so I thought I'd pass it along in case many people are unfamiliar with it. For similar tips about ATLEAST, NOT W/, and SY,DI(), see here.

No ruling on the merits, but the USSC has granted the stay to allow more time to consider Indiana pension funds' claim that the deal illegally prioritizes unsecured creditors over holders of secured debt.

The growing dispute between conservatives and liberals over the Supreme Court nomination of Sonia Sotomayor obscures a more troubling point of agreement: The government should almost always win.

Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference.

The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial "activism" but judicial passivism.

It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.

Then there is this:

The Constitution's framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.

Read the whole thing.

The only thing I would add is that the epithet "judicial activism" could be used to describe departing from the requirements of the Constitution, whether to uphold or strike down legislation. On the very rare occasions when I use the term, I am careful to define it in this way.

A reader asked whether I could comment on the latest anonymous blogger outing controversy (the Whelan/Publius matter). I might have something on the ethical questions later, but those are questions that I find difficult to answer at any high level of generality (though maybe I'll have a breakthrough while I'm trying to compose the post). Long-time readers with unusually good memories might note that my response to the threats to out the then-anonymous Juan Non-Volokh was not particularly condemnatory of the person who threatened to out him. That too stemmed from my view that the ethical questions related to outing anonymous bloggers are not easy.

I do, however, want to suggest that two reactions to the matter are unwise.

1. Contrary to the view of Prof. Michael Krauss (Point of Law) that "[he] hope[s] the ... tenure committee [at the law school where Publius teaches] is watching and taking note," I hope the tenure committee completely ignores this.

As I wrote before, law school tenure candidates are generally supposed to be judged on (1) scholarship, (2) teaching, and (3) service to the university, profession, and community. One's nonscholarly writings, such as columns in a local alternative newspaper, blog posts, and the like might be seen as a form of community service; but they are not a major factor, and if a candidate doesn't want them to be considered, they generally aren't (at least in the absence of unusual misconduct such as plagiarism).

And this makes perfect sense. Evaluating a law review article is evaluating what should generally be a thoughtful, thorough, carefully footnoted work that pays close attention to counterarguments. Even so, ideological prejudice will inevitably color the evaluation; even if we try hard to be objective, we'll naturally think (all else being equal) that articles that come to views with which we agree are better reasoned than those that come to views which we have rejected. But at least we'll see the many pages that carefully engage our preferred arguments, the close discussion of ambiguities in the sources, and the product of many months or years of thinking; and we may therefore often accept the article as meritorious even if we disagree with its bottom line -- which is often only a small part of the article's value.

Evaluating quickly written and necessarily highly incomplete op-eds or blog posts will necessarily prove to be a much more partisan process. Such pieces tell us relatively little about the author's qualities as a scholar, and pose a relatively large risk of ideological bias in the evaluation. Of course some people on the Right are sometimes impressed by some blog posts coming from the Left, and vice versa; yet this will often not be so -- and more often than with scholarly articles -- for reasons that have to do with ideological disagreement rather than any objective failings on the poster's part. Considering such nonscholarly writing is not irrational; one can argue that they do shed some light on the author's qualities of mind. But since the important qualities for a scholar are the ones that he exhibits in his scholarship and teaching, and the tenure process already thoroughly evaluates those qualities, it makes little sense to also focus on material that has much less bearing on the subject, and poses more of a risk of unfair evaluation.
Prof. Krauss argues that it's not "acceptable to try to trick tenure committees by hiding one's true views until one gets tenure"; but I don't think it's improper "tricking" when one doesn't publicize views that tenure committees shouldn't consider in the first instance, just as it isn't tricking a tenure committee when one doesn't publicly reveal one's sexual orientation or religious beliefs. And while Prof. Krauss argues that "One must think little of one's law school colleagues if one believes he will be censured for the expression (and not the quality of expression) of political views" and that one should "Confront your colleagues, or your friends, or your family, and convince them that your voice is a legitimate one," I think a professor whose careers is at stake might reasonably take a more cautious view: He might hope and even expect that his colleagues won't hold public political commentary against them, but worry that consciously or subsconsciously a few (perhaps a few who aren't going to be convinced of the "legitima[cy]" of other political views) will blackball him because of his political comments, and want to prevent that from happening.

Perhaps it's better and braver to be out of the closet from the outset about one's views. But a tenure committee shouldn't hold the contrary actions against a candidate who tried to remain anonymous but failed. It should evaluate the candidate on his scholarship, his teaching, and perhaps in some measure his institutional and professional service, not based on public off-the-cuff political commentary.

2. On the other hand, the suggestion that the outed blogger should sue -- made by a couple of commenters on Publius's blog -- strikes me as even more out of line. Identifying an anonymous author is speech, and presumptively protected by the First Amendment. One might think that it's unkind speech or unethical speech, but that surely doesn't strip it of constitutional protection.

Nor do any of the First Amendment exceptions apply. Accurately identifying the author of a blog isn't a false statement of fact. Even if the disclosure-of-private-facts tort is constitutionally permissible -- and I think it shouldn't be, though most lower courts disagree with me -- it seems to me that it can only be permissible with regard to a very narrow range of information that is both extremely private and of no conceivable relevance to public debate (perhaps the medical problems of a private individual, or pictures of someone in the nude). The identity of a public affairs commentator who apparently has several thousand readers each day strikes me as something that might well be relevant to public debate. Certainly it would be a very dangerous precedent if the coercive power of the legal system could be used to suppress such speech.

Likewise, I think the intentional infliction of emotional distress shouldn't be applicable to otherwise protected speech (i.e., speech that is outside the existing narrow exceptions, such as false statements of fact, threats, and the like). But whatever narrow scope that tort might permissibly have, surely identifying a political commentator can't plausibly qualify as constitutionally punishable speech. Perhaps there should be some exception for extremely rare circumstances, such as if the exposure creates a high risk of violence against the commentator -- though I think even that shouldn't qualify -- or if the commentator's identity was learned through illegal means). But surely no such circumstances should be present here.

As I mentioned, I think that anonymity, and outing of the anonymous, pose interesting questions of blogging ethics. But the focus should be on that, not on calls for legal restriction on speech, or for denial of tenure to scholars who should be evaluated based on their scholarship and teaching (and in some measure service) rather than on their public political commentary.

Q. How would you describe the political ideology of someone who worked for Michael Dukakis's campaign, was a cabinet secretay for Bill Clinton, holds a high-level position in the Obama Administration, and, who, when applauded at a Federalist Society meeting, responded "Thank you very much--I think. Let me remind you, I am a Democrat. I am proud to be Democrat"?

UPDATE: Some commenters suggest that I've overlooked the fact that members of the Federalist Society applauded Summers to begin with. No, I haven't. Summers won the applause of attendees at a Federalist Society held at Harvard Law School because (1) he was extremely popular among Harvard students, and was under attack; (2) his opponents were (primarily) on the far left, and he stood up for common "liberal" (in the classical sense) values against them. The telling aspect of the event was how embarassed and almost upset Summers was to be on the receiving end of such a nice welcome from the Federalists (you can view the video from a link on this page), and how he felt the need to disclaim their affinity for him. Given that the Federalist Society is an ideologically conservative/libertarian organization, I read "I am a Democrat" to mean, "I am a man of the Left." I don't know any Federalists who would object to a Justice Thomas or Scalia or Roberts if he were a Democrat.

(Note also that Summers' ultimate response to the women-in-sciences controversy was to issue an abject apology and throw money at his critics. Summers' reputation as a "conservative" seems to come from his taking economic positions that are fairly standard even among liberal economists. It reminds me of how people used to complain that the professor who taught intro economics at my alma mater was "conservative" because he opposed rent control and supported free trade. He was actually a Social Democrat, news that he was happy to share with anyone who bothered to ask.)

Also, several commenters complain that this is a "partisan" post. The point of the post is that Times reporters and editors have a very odd definition of "right of center," and I'd add that reading the Times with this in mind is helpful. I'm a bit at a loss as to why that is "partisan."

FURTHER UPDATE: Some commenters argue that the Times was describing Summers as a "right of center economist," which means simply that he is right of center for an economist. This is even more dubious than the notion that Summers is right of center in general. Economists of all political stripes tend to support free trade and negative income taxes, oppose agricultural subsidies and restrictions on capital and labor mobility, and believe that minimum wages cost the young and unskilled employment. When it comes to more politicized issues that economists tend to disagree about, such as whether there should be a minimum wage at all, and whether Social Security should be privatized in whole or in part, Summers is reliably on the "left."

Among the several opinions handed down today, the Supreme Court ordered the recusal of a West Virginia Supreme Court justice due to the excessive independent campaign expenditures made by the CEO of a company in a case before that court. The majority opinion was written by Justice Kennedy, and joined by the four liberal justices. Chief Justice Roberts wrote a dissent on behalf of the Court's conservatives. Justice Scalia also wrote a separate dissent. The opinion is here. SCOTUSBlog has an early summary here.

It's now been over three years since the U.S. Court of Appeals for the Second Circuit heard oral argument in Connecticut v. American Electric Power. In this case, several state AGs sued the nation's largest utility companies alleging their facilities contribute to the "public nuisance" of global warming and seeking court-imposed emission reductions. A Second Circuit panel, which included Judge Sotomayor, heard the case on June 7, 2006, and the litigants have been waiting for a decision ever since. Greenwire reports on the delay here.

The Washington Postreports that the Waxman-Markey "cap-and-trade" bill is chock full of traditional command-and-control regulation, including measures that will create a national housing code for energy efficiency.

the bill also contains regulations on everything from light bulb standards to the specs on hot tubs, and it will reshape America's economy in dozens of ways that many don't realize.

Here is just one: The bill would give the federal government power over local building codes. It requires that by 2012 codes must require that new buildings be 30 percent more efficient than they would have been under current regulations. By 2016, that figure rises to 50 percent, with increases scheduled for years after that. With those targets in mind, the bill expects organizations that develop model codes for states and localities to fill in the details, creating a national code. If they don't, the bill commands the Energy Department to draft a national code itself.

States, meanwhile, would have to adopt the national code or one that achieves the same efficiency targets. Those that refuse will see their codes overwritten automatically, and they will be docked federal funds and carbon "allowances" -- valuable securities created elsewhere in the bill that give the holder the right to pollute and can be sold. The Energy Department also could enforce its code itself. Among other things, the policy would demonstrate the new leverage of allocation of allowances as a sort of carbon currency -- leverage this bill would be giving to Congress to direct state behavior.

As the Post notes, these sorts of provisions -- and there are many others in the 900-page bill -- undermine the supposed point of "cap-and-trade," which is achieve emission reductions in the most cost-effective fashion through the use of market transactions. As the Post asks, "if the point of cap-and-trade is to change market incentives, why does Congress, and not the market, need to dictate these changes?" Virginia Postrel comments

The editorial hints that these sorts of provisions have been inserted because the bill's authors are counting on fellow members of Congress not to read what they're voting on. They undoubtedly remember how easy it was to get Congress to ban incandescent light bulbs by sneaking a provision into the Bush-era energy bill.

"Nearly 30 percent of Medicare’s costs could be saved without adverse health consequences," according to the President's Council of Economic Advisors. If so, Virgina Postrel wants to know, why don't we fix this before trying to make the rest of the health sector more like Medicare?

Think about this for a moment. Medicare is a huge, single-payer, government-run program. It ought to provide the perfect environment for experimentation. If more-efficient government management can slash health-care costs by addressing all these problems, why not start with Medicare? Let's see what "better management" looks like applied to Medicare before we roll it out to the rest of the country.

This is not a completely cynical suggestion. Medicare is, for instance, a logical place to start to design better electronic records systems and the incentives to use them. But you do have to wonder why a report that claims that Medicare is wasting 30 percent of its spending thinks it's making a case for making the rest of the health care system more like Medicare.

Thanks to all the commenters for their discussion in the comments thread. Commenters raised two items I thought warranted brief follow-up.

First, one commenter said that the ABA had condemned President Obama's signing statements in a March 12, 2009 item in the ABA Journal. I don't wish to belabor this subject, because my point in opening my post by saying that the ABA would doubtless soon denounce President Obama's use of signing statements as (to quote the ABA Task Force Report on Signing Statements) "contrary to the rule of law and our constitutional system of separation of powers" was not to focus on the ABA in particular, but simply to illustrate that signing statements no longer provoke the criticism they once did. The goal of my original post was just to note that the President had issued another constitutional signing statement -- an event that garnered scant attention from the national media or anyone else.

The only item from the March 12 ABA Journal discussing signing statements of which I am aware is just a short news article by a staff writer for the online edition summarizing the reporting of other newspapers; it was not a statement of the ABA. That article notes that ABA President H. Thomas Wells Jr. advised President Elect Obama in November 2008 in a memorandum that “If you believe that any provision of a bill pending before Congress would be unconstitutional if enacted, you should communicate those concerns to Congress before passage and use your veto power if you conclude that all or part of a bill is unconstitutional." (That was the last of six subjects in a memorandum that also discussed judicial selection, immigration, attorney-client privilege, interrogation, and the international criminal court.) On March 10, 2009, Mr. Wells also issued a statement praising as an "encouraging step" President Obama's March 9 memorandum in which President Obama pledged to issue signing statements only under specified circumstances and "only when it is appropriate to do so as a means of discharging my constitutional responsibilities." Mr. Wells also said in his March 10 statement that "President Obama or any other President must not skirt the only constitutional remedies available to the President regarding bills: sign or veto." That general statement of principle, which preceded President Obama's first constitutional signing statement (on March 11), is, to my mind, a far cry from "calling President Obama out" on signing statements. It is a difference between stating a principle and actually applying it.

To appreciate the difference, one needs look no further than Mr. Wells's own statements. In an October 2008 statement, Wells urged both candidates for President, if elected, to "resist using signing statements as a substitute for either negotiation with Congress or exercise of veto power." That general statement is not unlike those in Wells's November 2008 letter or March 10, 2009 statement. But the October 2008 statement goes further, saying that "last week the [Bush] administration issued two signing statements that ignore th[e] fundamental principle" that "no one branch of government has too much power." Similarly, Mr. Wells's November 2008 memorandum says that the use of signing statements by the "outgoing administration" was "contrary to the rule of law and our constitutional system of separation of powers." I am not aware that Mr. Wells has issued an official statement making a similar criticism of President Obama's actual use of signing statements. See the list of his statements here.

(By the way, if you're interested in reading more about President Obama's March 9 Memo on signing statements or his March 11 signing statement raising a number of constitutional concerns in the application of the Omnibus Appropriations Act, those have been discussed on the VC here, here, here, and here.)

Second, one commenter said that he thought the problem with President Bush's signing statements was that they were vague and did not identify the provisions at issue or the precise powers he claimed. That raises a good point that hasn't been discussed much in the signing statements debate.

The vagueness charge was not a major theme in the signing statement kerfluffle in 2006; the point was not made in most the major reports (including the ABA report), speeches, and op-eds at the time, which instead focused on arguments that constitutional signing statements represent an unconstitutional usurpation of power and are tantamount to a self-help line-item veto. (Basically for the reasons outlined in my testimony and Eric Posner's posts on the subject, I think those criticisms miss the mark.) A Congressional Research Service report stated in passing that President Bush's signing statements were often vague, see CRS, Presidential Signing Statements: Constitutional and Institutional Implications at CRS-11 (Sept. 17, 2007), but noted that his signing statements "do not appear to differ substantively from those issued by either Presidents Reagan or Clinton," id. at CRS-12, and stated more generally that "vague and generalized assertions of authority [are] typical of signing statements." Id. at CRS-30. Significantly, the vagueness charge was made in a thoughtful July 2006 post on the Georgetown Law School faculty blog signed by a number of professors, including some now running the Office of Legal Counsel. Perhaps unsurprisingly given this background, President Obama's March 9 memorandum pledged that his signing statements would "identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection."

Signing statements may be vague because they fail to identify the specific provisions at issue. Eric Posner noted that his study with Curtis Bradley concluded that President Bush, on average, issued two signing statements a year that did not identify the provisions at issue, and President Clinton, on average, issued one. Signing statements may also be vague because they do not adequately describe the nature of the constitutional concern. In that regard, probably my least favorite type of signing statement is one stating that a provision "will be interpreted consistent with my power under the X Clause," because, without more, it says little about when that will occur and what the result will be. Both President Bush and President Clinton (scroll down to his comment on section 610), among others, have issued such statements. Vagueness undermines the utility of signing statements to further the dialogue between the branches of government and to inform Congress and the public about the Executive Branch's planned implementation of statutes.

While, as Eric Posner noted, some parts of President Obama's March 11 signing statement did not identify the specific provisions at issue, subsequent signing statements have done so, and most are admirably clear in outlining the ways in which the President anticipates provisions might interfere with his authorities and how he intends to implement the provision (especially considering that signing statements tend to be fairly short, and thus do not permit extended discussion of an issue). President Obama has used the "consistent with my constitutional authority" language once (in his March 11 signing statement). He did, however, outline the specific nature of his objection in the preceding sentence, which is helpful, although he did not explicitly state the extent to which he intended to comply with the statute:

Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.

Kinsley walks through the many problems of the new, revamped Newsweek. How much of it looks like the old Newsweek, to start with.

But the essence of the critique is one that bedevils these kinds of magazines, as well as newspapers. Gathering news that consists of facts that are (a) facts someone wants badly enough to be willing, in principle, to pay for; and (b) facts that are sufficiently current and new that they have not already been priced into the information and so discounted in pricing power is expensive. And figuring out these days if there any hard facts that someone is willing to pay for, even if it does involve people getting out of the internet echo chamber and doing some hard research that might involve shoe leather - that's risky and expensive. About the only facts that fit those categories these days are in the areas of business and finance and economics, where people have money at stake.

So media organizations try to do two things at once.

First, they gravitate away from the high risk fact gathering activities - activities that are costly on the front end, and move toward the cheap business of writing opinion. It involves the exquisitely self-indulgent belief that professional journalists are good writers and that people will therefore want to read them over blogs and stuff like that. The business model problem with this is that opinion is cheap to produce - but it's widely available, easily produced, and frankly there are a lot of people out there who, if someone else supplies the facts, can produce pretty decent insights and prose, and will do it for free, at least if their day job is ... lawyer. Which is to say: opinionification = commodification. And commodity pricing will not pay the rent in Manhattan or DC or, these days apparently, LA, Seattle, Denver, or a lot of other places.

However one reads Jon Meachum's justifications for his strategy - Newsweek will be the Economist, it will be TNR, it will be the NYRB, etc. - at bottom it comes down to opinionification = commodification.

Second, then, if you are a newspaper or newsmagazine, you understand the commodity pricing problem, and if you think you can get away with it, you depend upon your past reputation and social capital, and assert that your opinions are not actually opinions, but facts - and then you will try to price them accordingly. We lapsed Mormons call this "chutzpah-pricing." And the way you do this is by putting them on the front page. You turn the newspaper into a magazine, but you try to price the opinions as facts and charge the fact-premium. This is the basic explanation of the front page of the New York Times, as it has gravitated to magazine-style analysis. (And so putting it in deep competition with its own Sunday Magazine, something that would annoy the heck out of me if I were Magazine editor Gerry Marzorati.)

But the NYT is one of a very small handful of papers that can play that game with a straight face; maybe the WP can, but not the LA Times, though it tried, and certainly not a newsmagazine. It can't try to premium price as facts, not when it is only appearing on a weekly basis anyway. Meachum appears to understand this, which is why he has pretty much given up on facts altogether and gone for the hyper-charged, hyperpuissant opinion model. He has to compete with newspapers as magazines, magazines as magazines, the internet as magazines, and without even the pretense of a budget by which to gather anything that can be premium priced.
(I plan to put up the occasional post on media economics and business models. Sometimes about the US, and sometimes about media economics in the developing world, where I do a lot of pro bono work.):

The National Law Journal’s Marcia Coyle reports on recent studies seeking to measure “judicial activism” by federal appellate judges, and what those studies conclude about Sonia Sotomayor. Based upon these studies, Judge Sotomayor does not appear to be particularly “activist” compared to other judges across a wide range of cases. Of course, in this area, much may depend on how one defines the term, and it is conceivable a judge could confine his or her “activism” to a confined set of cases or subject matter.

Coyle summarizes the conclusions of Frank Cross and Stephanie Lindquist in a second story here. There research is based upon their book, Measuring Judicial Activism, which Stephen Griffin wrote about here. Corey Yung also has a series of blog posts reporting his methodology and preliminary results at Concurring Opinions in this series of posts: 1, 2, 3, and 4.

Over the past two months, Ed Whelan (with whom I blog on NRO’s “Bench Memos”) and a pseudonymous blogger at Obsidian Wings known as “publius,” have tradedbarbsandinsults while debating various issues related to President Obama’s nominations of Harold Koh and Sonia Sotomayor. As a rhetorical matter, neither side proceeded with kid gloves. As a substantive matter, I believe Whelan got the better of publius more often than not, particularly with regard to Koh’s legal views. This weekend, however, I think Whelan crossed the line.

Over time, the heat-to-light ratio in the Whelan-publius exchanges increased, and Whelan learned publius’ real identity – a recently minted, untenured law professor. As part of a recent response to publius, Whelan decided to disclose this information in a blog post. This was wrong. While Whelan defends his course, I think it was an intemperate and unjustified response Granted publius attacked Whelan in harsh terms, often allowing the force of his rhetoric to outstrip the substance of his argument, but Whelan gave as good as he got, and exposing publius served no meaningful purpose.

In my view – and I’m hardly a disinterested party given my own history – pseudonymous blogging can enrich the academic and policy blogosphere. While it enables some to hurl reckless charges and gross epithets, it also facilitates the engagement of more individuals in on-line discussion and debate. There are many understandable reasons why intelligent and knowledgeable people in various fields are reluctant to blog under their own name. Adopting a pseudonym is not necessarily a cowardly or sinister act.

Of course one blogs under a pseudonym at their own risk. There is no guarantee pseudonymity can be maintained over time. When I blogged as Juan Non-Volokh I was well aware I could be exposed by those I debated or criticized. Indeed, I assumed it would happen long before I came clean on my own. The more I blogged in my own voice, focused on issues about which I know a fair bit about, and revealed details of my life, the more likely exposure became. In the end, my identity was probably something of an open secret among most of those who truly cared. So while I don’t know how much the threat of exposure would have influenced my own blogging on this site, the more acceptable it is to expose the identities of pseudonymous bloggers, the more potentially valuable voices the blogosphere will lose. Whatever is to be gained by chastening the intemperate pseudonymous blogger is outweighed by what is likely to be lost.

I also think it is important to distinguish between anonymous and pseudonymous blogging. While complete anonymity may enable someone to evade any accountability for intemperate or unwise remarks, the creation and maintenance of a pseudonym can have a disciplining effect on blogger behavior, and thus should be encouraged as an alternative to purely anonymous blogging and posting. Reputation effects and the desire to maintain readership can impose significant discipline. A pseudonym operates like a brand name, and the value of the brand is, at least in part, a function of how the pseudonymous blogger acts over time. This disciplining effect is hardly perfect, however, particularly when it comes to maintaining civility. As I believe the tone and snarkiness of many pseudonymous bloggers and commenters attests, a pseudonym can reduce a blogger’s vulnerability to personal attacks and can shield him or her from social sanctions for uncivil conduct. I believe this means that those who utilize pseudonyms should take greater responsibility for the tone and content of their own posts so their pseudonymous shield does not become a license for nastiness and snark (and I hope I was able to do this when I used a pseudonym). But I also believe that, barring exceptional circumstances (e.g. something far worse than wrong-headed criticism) other bloggers should respect the choice of others to rely upon pseudonyms.

Ed Whelan obviously feels differently, as his posts make clear. In time, I hope he reconsiders his course, and that others recognize that exposing identities is the wrong way to deal with pseudonymous bloggers with which one disagrees.

Note: I wrote this post on a plane. Upon landing I discovered this post by Walter Olson at Point of Law with which I am in general agreement (save what he says about me). My former professor, Michael Krauss, responds here. My only comment on Prof. Krauss's post is that there are many reasons an untenured professor may wish to blog under a pseudonym that do not involve "trick[ing tenure committees by hiding one's true views until one gets tenure." In my own case, my colleagues were well aware of my political views, and political considerations were only a small part of the reason I chose to adopt a pseudonym.

Glenn Reynolds rounds up some more posts on this kerfuffle here. How do you feel? Hot Air has a poll here.